Notice and Comment

By: Ally Coll & Michelle Kallen In January 2020, Virginia became the 38th state to ratify the Equal Rights Amendment (ERA). Thirty-eight should have been the magic number: Article V of the United States Constitution, which lays out the process for Constitutional amendments, provides that a proposed amendment becomes part of the Constitution as soon […]

By: Ryan H. Nelson In January, the Supreme Court quashed the best thing our government had done to fight the pandemic.  In a 6-3 opinion, the Court paused implementation of the Biden Administration’s workplace vaccine-or-test-and-mask requirement for larger private employers until its legal challenges resolved. Granting such a drastic provisional remedy requires a determination that the challengers […]

By Poppy Alexander and Chris McLamb* During the oral arguments heard by the Supreme Court last week regarding Texas’s anti-abortion statute (SB 8), a significant part of the back-and-forth was devoted to whether the law can be compared to a whistleblower statute. SB 8 enlists private citizens to report other citizens for exercising their constitutional […]

By David S. Cohen* Texas’s Senate Bill 8 (SB8) is, to use a technical legal word, bonkers. And I’m not even talking about the substance of the bill, which is a clearly unconstitutional ban on abortions at six weeks of pregnancy, which is long before viability. Rather, the law is bonkers because of all of […]

By Haiyun Damon-Feng* One of the cruelest and most devastating Trump-era immigration policies was the Remain in Mexico policy, formally titled the “Migrant Protection Protocols” (MPP).[1] MPP upended decades of established asylum law and practice, forcing asylum seekers to wait in Mexico pursuant to a bilateral agreement between the U.S. and Mexico—where many were kidnapped, raped, […]

By Haiyun Damon-Feng* In January 2019, the Department of Homeland Security (DHS) began implementing the inaptly named “Migrant Protection Protocols” (MPP), often referred to as the “Remain in Mexico” policy. MPP is a coercive, inhumane, and likely unlawful U.S. immigration policy that marked a stark departure from U.S. asylum law and procedure. Asylum is a […]

By Daniel Cotter* On October 21, 2020, President Donald J. Trump quietly issued Executive Order 13957, which dramatically changes the nature of federal civil servants’ job security. Because tens of thousands of federal employees might be impacted, the Washington Post editorial board wrote that the “newest executive order could prove one of [President Trump’s] most […]

By Bradley Silverman* With voting underway and election rules being challenged in courts across the country, fears of another Bush v. Gore[1] are on the rise. As state courts and officials in Pennsylvania, North Carolina, Minnesota, Texas and elsewhere modify state election rules to accommodate the unprecedented challenges that COVID-19 has presented, some argue that […]

By Michele Goodwin* In 2000, nations throughout the world agreed to participate in the United Nations Millennium Development Goals (MDGs). One of the key objectives specifically targeted reducing pregnancy-related deaths. Nearly two dozen international organizations and 191 member state nations publicly committed to achieve eight goals, among them reducing maternal mortality. All but a few […]

By David S. Cohen* What’s the test in lower court cases challenging abortion restrictions? Is it the burdens versus benefits balancing test from Whole Woman’s Health v. Hellerstedt? Or is it the substantial obstacle test, with no balancing, from Chief Justice Roberts’ concurring opinion in June Medical v. Russo? This is the burning question in […]

By Mary Ziegler* The Supreme Court’s decision in June Medical Services v. Russo was more than a little ironic. Chief Justice Roberts’s controlling concurrence read as a celebration of stare decisis, the principle that the Court should usually defer to its past decisions. And yet Roberts upended precedent. If Roberts’s concurrence becomes the standard for […]

By Maya Manian* In June Medical Services v. Russo, the U.S. Supreme Court struck down a Louisiana law that would have shuttered all but one abortion clinic in the state. Unfortunately, that decision came at a steep cost: Chief Justice Roberts wrote a separate opinion in June Medical weakening the legal standard for protecting abortion access and […]

**The deadline for submissions has been extended to Friday, August 21** The Harvard Law & Policy Review’s Winter 2020 Student Note Competition is now open. The competition provides a unique opportunity for law students to publish their work in HLPR, which has had a recent distribution to more than 6,000 lawyers nationwide, as well as […]

By Aziza Ahmed* Among the many important critiques made by reproductive justice (RJ) advocates, a key claim is that “choice” is a myth for poor women seeking reproductive health services. According to RJ advocates and scholars, a combination of laws and social realities—from welfare restrictions to discrimination in the hospital setting—have made it nearly impossible […]

By April Xiaoyi Xu* “I will always be your judge, and you will always be my clerk.” —Justice Christina Wong Stinson to Audrey Coyne in David Lat’s novel Supreme Ambitions Over the years, there have been many efforts to reform the American clerkship selection process. While many support regulating the judicial clerkship selection process, others […]

By Sandeep Vaheesan* Attorney General Bill Barr inadvertently showed the fundamental problems with federal policy on corporate mergers. In testimony to Congress last month, a Department of Justice (DOJ) career employee revealed that Barr had directed the Antitrust Division to closely scrutinize mergers in the highly fragmented cannabis industry (operating in states that have legalized […]

By Seema Mohapatra* In the midst of a global pandemic and horrifying examples of police injustice, the Supreme Court added to the pain by delivering several blows to reproductive justice in the last few weeks. Although June Medical v. Russo was a technical victory, the dissenting and concurring opinions, written by five men, make it […]

By Rachel Rebouché* I am delighted to introduce this online symposium on current issues related to the regulation of reproductive health. This month, the Harvard Law & Policy Review will showcase four essays that explore racial disparities in reproductive health care, criminal prosecution of prenatal behavior, and the future of constitutional abortion rights. The symposium […]

By Mondaire Jones, Marcela Mulholland, and Julian Brave NoiseCat* Climate change is coming for all of us. But its destruction will disproportionately affect low-income communities and communities of color, and coronavirus has offered us a preview of how that might look. People who live in low-income communities and communities of color have been far more […]

By Mason Marks* The COVID-19 pandemic is triggering a national mental health crisis. Millions may experience prolonged grief due to the loss of friends or family, depression from unemployment and social isolation, and post-traumatic stress disorder from working on the frontlines as healthcare providers or undergoing treatment as patients. Our healthcare system is unprepared. It lacks the funding […]

By Ben Horton* A few weeks ago, Professors Jack Goldsmith and Andrew Keane Woods ignited controversy by suggesting in the Atlantic that China was right and America was wrong about internet censorship and surveillance. This seemingly contrarian stance rubbed people the wrong way, especially given reports that China’s online censorship delayed their response to COVID-19 […]

By Matthew J. Razzano* When you hear the phrase “structural inequality” you might not immediately think of payments systems. The choice of whether to purchase a television or a meal with cash or a credit card might not feel like a monumental decision, but it has significant economic consequences because balancing the interests of credit […]

By Daniel Cotter* The Office of the Attorney General was established in 1789 as part of The Judiciary Act of 1789. The Act, among other things, established the makeup of the Supreme Court and its exclusive jurisdiction and also the lower court structure. One of the powers the Act gave to the Supreme Court, writs […]

By Swapna Reddy, Shetal Vohra-Gupta, April Shaw, Nina Patel, Liana Petruzzi* As U.S. states elevate restrictions to contain the spread of coronavirus, many have enacted measures to restrict “nonessential” surgeries and procedures during the COVID-19 pandemic. Following Texas and Ohio’s leads, several states (Alabama, Iowa, Oklahoma, and Mississippi) have used these directives to stop surgical and […]

  Today, the Harvard Law & Policy Review and the Harvard Law School chapter of the American Constitution Society have the pleasure of releasing three fantastic pieces setting out progressive visions for the U.S. Constitution. Citizenship, Personhood, and the Constitution in 2020 Rachel F. Moran Reproductive Rights and the Rule of Law in Peril: The […]

By Daniel Cotter* When the Mueller Report was expected in the early months of 2019, the question of the potential for a sitting president to be indicted was debated.  The main argument against the ability to indict a sitting president was the September 24, 1973, Office of Legal Counsel (“OLC”) memo drafted by President Richard […]

We’re seeking submissions for our student note competition, with winners to be published this summer in Vol. 15.1! The competition provides a unique opportunity for law students to publish their work in HLPR, which has had a recent distribution to more than 6,000 lawyers nationwide, as well as congressional offices, judges, and other progressive decision-makers. We seek policy-oriented pieces […]

By Daniel Cotter* On December 18, 2019, President Donald J. Trump became only the 20th person and 3rd president to be formally impeached by the House.  Debate began about whether he had been impeached if the articles were not submitted to the Senate.  The better argument, reading the language of the Constitution, is that a […]

By Eric Allen Kauk* Oklahoma recently commuted the sentences of more than 500 inmates. This mass commutation followed a state legislature reclassification of low-level drug possession and property crimes. The legislature announced that the state will apply these changes retroactively. This state action may seem like a huge win in a society thirsty for criminal […]

By Mateo De La Torre* and Harper Jean Tobin** As the nation discusses sentencing and prison reform, judges and policymakers increasingly consider the rights of an especially vulnerable group of prisoners: those who are transgender. Similar to other minority groups, LGBTQ people face disproportionate rates of incarceration. Federal data show non-heterosexual adults are locked up […]

By Daniel Cotter* On October 31, 2019, the House voted along party lines, 232-196, to formalize the impeachment inquiry procedure.  Republicans had insisted that the process must be formalized and that a vote was required before the House could conduct an impeachment inquiry.  That insistence is misplaced and is a myth of the impeachment process […]

By Daniel Cotter* On October 8, 2019, White House Counsel Pat A. Cipollone wrote an eight-page letter to House Speaker Pelosi, and to Chairmen Engel, Schiff, and Cummings. The letter was described as being without legal basis and wrong.  It is a dangerous letter for many reasons, including that it inaccurately addresses what impeachment is […]

By Sarah J. Morath* You don’t need to be an elected official, a CEO, or a celebrity like Leonardo DiCaprio to create environmental change. You don’t even need to be an adult.  Sixteen-year-old Greta Thunberg illustrates that individual action by everyday individuals, matters.  What began with a lone school girl sitting on the steps of the […]

By Daniel Cotter* The formal impeachment inquiry into allegations of President Trump’s dealings with Ukrainian President Volodymyr Zelensky is ramping up quickly. Much has been discussed about the impeachment process and what happens if Trump is impeached. Article II, Section 4 of the United States Constitution provides for impeachment, stating: The President, Vice President and […]

By Michael J. Hasday* When the State of California and Planned Parenthood recently sued the Trump Administration over regulations implementing an abortion gag rule,[1] they must have thought they had a good chance before the famously liberal Ninth Circuit Court of Appeals.   But lady luck was not on their side.   Although the majority of judges […]

Few institutions are as important to shaping the future of the United States as the electoral college. Please join Professor Lawrence Lessig and the Harvard Law & Policy Review on Friday, October 18 and Saturday, October 19 for a series of conversations and presentations at Harvard Law School regarding the historical and philosophical foundations of […]

By Mark Satta[1] On June 20, in a 7-2 decision, the Supreme Court ruled that the presence of a ninety-year-old World War I memorial in the form of a 32-foot Latin cross on public land in Maryland does not violate the constitutional prohibition against governmental establishment of religion. The Court’s decision in American Legion v. […]

By Daniel Cotter* President Donald Trump has had great success in appointing Article III judges to the many vacancies that he inherited when he became President in January 2017.  President Trump has touted recently that he is on a record-breaking pace for the judiciary.  However, a review of the data of judgeships filled by president does […]

By Adriel Cepeda Derieux* Late last month, the Supreme Court heard argument in Department of Commerce v. New York.  The case will determine whether the Trump administration can change the census by adding a question that asks the citizenship status of all persons in the United States.  Despite petitioners’ misleading arguments, that question has no […]

By Christopher Poulos* On election night of 2008, I was incarcerated at a federal prison in Lewisburg, Pennsylvania. I was the only white prisoner in the TV room of my unit as we watched the election results stream in. It became evident that Senator Barack Obama would become our nation’s first black president. African American […]

By Jeremy Pilaar* Earlier this month, Uber and Lyft drivers across the United States and the world went on strike. Despite facing immense barriers to organizing, thousands closed their apps and took to the streets to demand fair pay and benefits. The actions were long overdue. The companies are collectively valued at over $80 billion. […]

By Daniel M. Coble* “Do the right thing, in the right way, for the right reasons.”             -Preet Bharara, Doing Justice Introduction The power to prosecute is a heavy burden to bear. From a simple fine to the ultimate punishment, a prosecutor knows well that the crown is heavy to wear. While it can take […]

By Daniel Cotter* In recent days, Alabama and Missouri have joined some other states in enacting laws that make abortion criminal in almost all instances and at an early point in the pregnancies. Some progressives and others have some hope that Chief Justice Roberts will save Roe v. Wade.Recent judicial biographies tell the story of how […]

By Kurt Walters* In today’s crowded Democratic primary season, one issue has emerged that would have been unthinkable as recently as 2016: increasing the number of justices on the U.S. Supreme Court. At least five Democratic candidates have expressed openness to expanding the Court: Senators Elizabeth Warren, Kirsten Gillibrand, and Kamala Harris as well as […]

By Jeremy Pilaar*   Lawmakers must pay constant attention to changes in the world around them. Societal problems are rarely static. Instead, they evolve—often assuming unexpected forms that challenge prior assumptions about how to solve them. When policymakers forego this exercise, they risk exacerbating social harms. I chronicle one example of this phenomenon in the […]

By Michael Svedman*   In her recent proposal to break up Amazon, Google, and Facebook, Elizabeth Warren sounds the familiar antitrust alarm. Weak antitrust enforcement has allowed big tech companies to achieve Gilded Age levels of market dominance. They use mergers and proprietary marketplaces to acquire or exclude their competitors. The effect is to squeeze out […]

By Michael Webert*   Introduction In the wake of recent decisions by the Court of Appeals for the Armed Forces (CAAF), the military justice system’s highest appellate court, victims of child pornography offenses now receive substantially different rights and treatment in military courts than in federal civilian courts. Two key issues in child pornography cases are […]

By Eric Allen Kauk*   On November 20, 2015, around 11:00 p.m. Terance Gamble was pulled over in Mobile, Alabama by a local police officer for having a busted light on his car.  As the officer walked up to the car, he smelled marijuana, so he removed Mr. Gamble from the car while he searched the […]

By Siddharth Sonkar*   CONTEXT Last month, in an unprecedented cyber attack on J.W Marriott Hotel’s guest database, data relating to more than five-hundred million guests spanning over four years was stolen. Not only were the hackers able to obtain the personal information of these guests but were also able to obtain sensitive personal information […]

By Mark Satta* Last month, Aaron and Melissa Klein, a couple who owned a bakery in Oregon, asked the Supreme Court to review a ruling from the Court of Appeals of the State of Oregon, which held that the Kleins had violated Oregon state law by discriminating based on sexual orientation when they refused to […]

By Gina Schouten*   I want to argue for a shift in focus in conversations about justice in higher education. Because meritocratic admissions cannot meaningfully promote egalitarian justice, I argue that we should consider using weighted lotteries in admissions decisions, and that we should reform the culture of colleges and universities to make it likelier […]

By Shanna Cleveland* When faced with an investigation by the New York and Massachusetts attorneys general over whether or not they misled investors, consumers, and regulators on the impact of climate change, Exxon went on the offensive.  It filed a federal lawsuit arguing that the investigations into potential violations of securities and consumer protection laws […]

By Leah M. Adams*   As 2018 draws to a close, we are left with just one year to fulfil the 2020 vision of the National HIV/AIDS Strategy (NHAS), a set of goals for HIV prevention and treatment that was created by the White House in 2010, and then updated in 2015. To be sure, […]

Alexandra Rawlings* Since European settlers arrived on Turtle Island (North America), they have attempted to assimilate and exterminate the Indigenous peoples of this land. The United States government policy of “kill the Indian, save the man” aimed to eradicate Native languages, sacred knowledge, and family (and thereby governmental) structure, and replace them with those of […]

By Eric Allen Kauk* Last week voters in Florida passed a state constitutional amendment that automatically restored the right to vote to more than 1,000,000 people who were previously convicted of felonies, and who have successfully served their sentences.  The amendment was widely-supported by many groups including the ACLU, the Koch brothers-backed Freedom Partners, and […]

By Emma Greenman* With a week until the 2018 elections, campaigns are shifting into high gear and so are voter suppression efforts in many parts of the country. America’s history with disenfranchisement is older than the Constitution itself and this year we have seen a disturbing acceleration of the decade-old resurgence of restrictive voting laws, […]

by Jillia Pessenda* Across the country women are running for office in record numbers. At Women Winning, a Minnesota-based organization dedicated to electing pro-choice women from all political parties to all levels of public office, we see this unprecedented national trend reflected in our work across the state. At a time when we are confronting the […]

By Chris Sagers[1] In the world there are weightier things than antitrust, and the Supreme Court nomination of Judge Brett Kavanaugh involves many of them. His replacement of Anthony Kennedy will likely change the Court’s balance in several areas, perhaps including the constitutional status of abortion, marriage rights, and who knows what other civil rights […]

By Milton Heumann*   The classic “you’ve come a long way baby” mantra from the world of tobacco advertising has an analogous application to plea bargaining. Fifty years or so ago, plea bargaining was just emerging from the shadows of the perception of our trial courts, but today it is recognized as occupying the central […]

By Eric Allen Kauk* This November Florida will vote on Amendment 4, a measure that would automatically restore the right to vote to 1,487,847 convicted felons who have successfully served their entire sentence and paid their debt to society. Florida lags far behind the rest of the country when it comes to restoring individuals’ civil […]

By Amien Kacou* The Trump administration has made fighting illegal immigration a top law enforcement priority. But, despite the President’s frequent displays of availability bias—if not vicious cynicism—on this issue, it is well-established that immigrants, regardless of legal status or origins, are on average less likely than citizens to commit most crimes. In fact, their […]

By David Patton* These days as a federal public defender, I’m often asked some version of, “Aren’t federal prosecutions horribly unfair and draconian now that Jeff Sessions is heading the Department of Justice?” I usually respond with some version of “Yes, they are.”  What I often leave out is, “And they have been for as […]

By Melissa Garlick* Three militia members from southwest Kansas were recently convicted on federal civil rights charges and conspiring to use a weapon of mass destruction for targeting Somali Muslim immigrants for a plan of mass murder in 2016.  On a recording made available to the jury, one of the defendants said: “The only good […]

By Mark Satta* There are a lot of traits worth wanting in a political leader—relevant experience, good public speaking skills, strong critical thinking skills, a charming personality, empathy, tact, wisdom, diligence, willingness to serve those whom one leads, etc. The current President of the United States seems to lack an unsettling number of these traits, […]

By Jared Odessky* In August 2016, the National Labor Relations Board (NLRB or “the Board”) held that graduate student assistants at Columbia University were statutory employees under Section 2(3) of the National Labor Relations Act (“the Act”) with the legally enforceable right to unionize. The ruling extended to private colleges and universities generally and spurred […]

By Reveena Kumari Sethia* Antitrust laws have evolved across the globe to ensure that consumer welfare and effective competition remain the priority while balancing the promotion of liberalism and uninterrupted world trade. The intervention of executive action where antitrust and economic policies could’ve brought an acceptable balance may be seen as a step backward in the larger […]

By Alamea Deedee Bitran* Since the disturbing details of the Harvey Weinstein scandal were released, an influx of harassment allegations have been brought to light. Yet arguably the parameters of the law remain unsuitable to address the root of the problem because of contractual barriers to victims litigating their claims in the public eye.  While […]

By Geoffrey R. Stone* We are living in perilous times. As we contemplate the prospect of another appointment by Donald Trump to the Supreme Court of the United States, the stakes for our nation are extraordinarily high. Among the many issues at risk, perhaps the most important concerns the right of a woman to decide […]

By James Sasso* It is past time that America keeps assault rifles and other military-style weapons away from public use. There are compelling reasons for American politicians to prohibit free ownership of military-style or semi-automatic weapons that reload automatically and can kill many people in rapid succession. A viable solution must respect Second Amendment rights […]

By Allie Boldt & Adam Lioz* The Supreme Court’s flawed approach to money in politics paved the way for Trump-style politics—and must change to rescue our democracy.   In case after case over the last 40 years, the Supreme Court has struck down laws designed to protect our democracy from the influence of big money. […]

Note: This article is cross-posted at the Huffington Post. By Ryan Cohen* When he wakes up in the morning, the first thing Marco does is write. To incentivize himself to stay on track with his goals, he pays a friend $25 if he hasn’t written 500 words by noon. Though he’s working on finishing his […]

By Edward Nasser* On Tuesday, November 7th, the House of Representatives voted to pass a bill that would narrow the definition of a joint-employer and reduce liability for companies that work with subcontractors or staffing agencies. The bill, misleadingly titled the “Save Local Businesses Act,” would effectively reverse the National Labor Relations Board’s 2015 decision […]

By Taylor Holden* The Trump administration recently rolled back federal requirements that employers include birth control coverage in their health insurance plans, significantly expanding exemptions for corporations that cite moral or religious objections at the expense of the health of hundreds of thousands—if not millions—of women. This new policy is the latest in a long […]

By Ruth Stein* Older Americans may remember when November 11th wasn’t known as Veterans Day. The day reserved to recognize, reflect upon, and revere the achievements of our American heroes was originally named Armistice Day to honor the cessation of major World War I hostilities (at the 11th hour of the 11th day of the […]

By Danielle Haley* In late October, Governor Cuomo vetoed a bill that “Relates to the definition of a gravity knife.” The law aimed to reform New York­’s laws regarding gravity knives by reducing the possibility for discretionary and discriminatory enforcement. The law governing gravity knives was initially passed in 1958 and has not been updated […]

By Alexander Andresian* Two weeks ago, President Trump formally announced the beginning of the end of the Deferred Action for Childhood Arrivals (DACA) program.[1] Put in place by the Obama Administration, the DACA program granted work permits to, and deferred the deportation of, the children of undocumented immigrants (herein referred to as “Dreamers”) brought to […]

By Caleb Hall* The onslaughts of Hurricanes Irma and Harvey are the first recorded instance where two category four hurricanes reached the U.S. Atlantic coast within the same calendar year. As of this writing, the Houston area death toll has reached over eighty, and Hurricane Irma has taken thirty-nine lives in the United States along […]

By James Sasso* Even though the Dallas Mavericks are his namesake, Senator John McCain has embraced the philosophy of the Philadelphia 76ers basketball team: trust the process. For 76ers’ fans, this mantra played like a jukebox stuck on Sting’s Desert Rose; at first it’s tolerable, but quickly it’s maddening. Fans suffered years of horrendous teams […]

By Sarah Song* On Monday the U.S. Supreme Court allowed some of President Trump’s travel ban to stand, which he quickly hailed as a “clear victory.” Challengers of the ban have been equally quick to emphasize that the court’s opinion actually protects many people seeking to enter the U.S. including those who have families, offers of […]

By Maseeh Moradi* In October 2015, during my second month of law school, Justice Anthony Kennedy visited and made a remark that I have been thinking about ever since the bitter evening of November 8, 2016. Plato and Aristotle, he explained, had very low views of democracy, believing it a form of government that both [...]

By Rep. Louise Slaughter (D-N.Y.)* When scientists started the process of sequencing the human genome, it began to unlock limitless advancements in medicine that were and remain virtually unparalleled in our history. At the same time, a new risk arose that genetic information could be used for employment and health insurance discrimination. Every American was […]

By Brian Christopher Jones* No government or military experience…fine. Don’t read (beyond Twitter)…fine. Refuse to release your tax returns…fine. Encourage violence at your campaign rallies…fine. Degrade women about their “looks”…fine. Mock disabled persons…fine. Belittle political opponents and defame their families…fine. Brag about groping and touching (potentially sexually assaulting) women…fine. Openly lie to the American public…fine. And […]

By Nicolas Deising* & Nihal Dsouza** The Dodd Frank Act is considered to be the most ambitious and far reaching legislation regulating the financial sector since the Great Depression of the 1930’s. On the surface, it instills confidence in the financial system. At a deeper level, it is aimed at preventing similar occurrences to the 2008 […]

By Mark Satta* “It was a holocaust…All of my peers died of AIDS, and I have no one to celebrate my past or my journey, or to help me pass down stories to the next generation. We lost an entire generation of storytellers with HIV.” Those are the words of David Mixner, a civil rights […]

By Ian Silverii* He’s a nice guy. He’s a fair and good jurist. Well, he could be worse. If everything is an outrage, nothing is. These are some of the arguments I hear from friends, political operatives, and conservatives and progressives alike when discussing the nomination of Judge Neil Gorsuch to the United States Supreme Court […]

By Steven J. Gonzalez[1] I. Introduction The prevalence of obesity and its related chronic illnesses has been increasing for decades and takes a heavy toll not only on individual households, but also on public health institutions. The over-consumption of sugar, especially through Sugar Sweetened Beverages (SSBs), is an important contributor to this epidemic. Curtailing Americans’ intake […]

By Alexander Reinert* Many remarkable events have taken place during the first month of President Donald Trump’s Administration. Among these, the Administration’s restrictions on immigration, and the role litigants and judges have played in at least temporarily halting those restrictions, have received much deserved attention. But perhaps overlooked is that the challenges have been successful […]

By Tina Rulli* Republicans’ new plan to replace the Affordable Care Act ditches the health insurance mandate, the requirement for individuals to purchase health insurance or pay a penalty. Instead, their American Health Care Act favors tax credits to incentivize people to purchase insurance. There are many vantage points from which to assess the health […]

By Angela D. Morrison* The administration’s revised travel ban represents only the most visible part of the administration’s discriminatory immigration policy. The U.S. immigration system has a sexist and racist history. The travel ban, along with many of the administration’s other immigration policies, builds on that legacy. Because the administration has been so apparent in […]

By Heidi Kitrosser* President Trump supports accountability regarding his campaign’s alleged contacts with Russia. He is similarly responsive to stories about his administration’s early missteps, including embarrassing phone calls with world leaders and the crafting of the controversial travel ban. The accountability that he has in mind, however, is not for himself or his surrogates. Rather, […]

By Jonathan Gruber, MIT* One of the most contentious public policy issues of the early days of the Trump Administration is the future of the Affordable Care Act (ACA). President Trump and congressional Republicans decry the law as a failure and say that it must be repealed and replaced with something better. This line of […]

By Philip L. Torrey* For the past couple of weeks, many of us have rightly focused on the chaos that Trump’s hasty and ill-conceived executive orders on immigration have created. But buried in the fine print of the “Interior Enforcement” executive order is a provision that signals an equally alarming threat; one that has gone […]

  By Eddie Nasser* In Executive Order No. 13768 issued January 25th, President Trump attempted to follow through on a major campaign promise to cut all federal funding from so-called “sanctuary cities.” Not only is the order bad policy, it also seems unlikely to withstand a challenge in court. Section 9(a) of the order mandates […]

By Harry Stein* After years of hysterical warnings about a “looming fiscal crisis” from deficits under President Barack Obama, Republican leaders in Congress are suddenly willing to increase deficits for President Donald Trump. This deficit flip-flop is certainly hypocritical, but it also obscures the true nature of the threat posed by Trump. Trump is taking office at a time […]

By Jessica Huey* It was the worst day of his life. That was all he would ever say about it. Looking at black and white photos of my great-grandfather, the stoicism etched in his expression is impossible to ignore. But to understand his story—that of a quiet, Japanese merchant who came to America with his […]

By Charles Tiefer* The press coverage of Senator Elizabeth Warren’s silencing under Senate Rule XIX was colorful, but sadly shallow. Much more daunting than a one-cycle news bite or a catchy hashtag, the incident in fact revealed that today’s narrow Republican Senate majority is poised to use procedure to subjugate the minority Democrats to an […]

  by Ryan Cohen and Shane Hebel, Harvard Law & Policy Review, Volume 11 Editors-in-Chief During this time, when our nation appears so divided, there is one thing that we all share, whether we are Democratic or Republican, teacher or coal miner, voter or U.S. President, from the coasts or from Appalachia. Debt. We may […]

By Rose Carmen Goldberg* Veterans have long suffered from the invisible wounds of war, such as PTSD. These injuries have become painfully apparent in the 20 veteran suicides committed every day. Some blame the Department of Veterans Affairs (VA) for failing to address this crisis. President Trump, for one, views the VA as “the most […]

By Maseeh Moradi* The recent immigration executive order promises in its title to protect “the nation from foreign terrorist entry.” It does so by barring the entry of, among hundreds of millions of others, all of my aunts, uncles, and cousins (my own parents, once aliens, now citizens, would have been barred as well). Protecting […]

By William Denn* Like many Americans, I was deeply troubled by Hameed Khalid Darweesh’s detention at New York’s JFK airport on January 28th. Darweesh, a former U.S. military interpreter from Iraq, who received a special immigrant visa (SIV) on January 20th, was detained due to the recent travel ban affecting seven Muslim-majority countries. The action […]

By Jeremy Thompson[1] The U.S. incarceration rate has increased 700% since 1970.[2] As a result, the U.S. has the highest prison population in the world.[3] In the U.S., only 12% of the population is Black.[4] Yet, despite living in a “post-racial,” “colorblind” society,” 38% of the prison population is composed of Blacks.[5] Part of this […]

By David Howard* Automatic Voter Registration Voting “is a fundamental matter in a free and democratic society . . . . [because it] is preservative of other basic civil and political rights.”[1]   But before one can vote, that person must first register with the state, often weeks before the election. Voter registration continues to be […]

By Shannon Watts* As a mother of five, I was devastated by the mass murder of twenty children and six educators at Sandy Hook School nearly four years ago this week. So I started a Facebook page from my kitchen counter in Indiana, which connected me with moms from all over the country who agreed […]

By Tommy Tobin* It’s an unfortunate reality that food can sometimes make people sick. In just one year, nearly 20,000 Americans were hospitalized due to Salmonella bacteria alone, and over 375 individuals died. In concert with other agencies, the Food and Drug Administration (FDA) plays a leading role in preventing foodborne illness. For scientists, pinpointing […]

I was fortunate to be a part of many great moments, in and out of the Supreme Court’s chambers, during my tenure as Solicitor General in the administration of President Obama. But of all the great moments, the one that means the most to me occurred at the end of a grueling three days of […]

By Nino Monea* If you take a stroll through Cambridge, Massachusetts, you probably wouldn’t pay much attention to the park benches. But if you did, might notice handrails jutting out in the middle of many of the benches. Though seemingly benign, this feature means that a person trying to stretch out cannot sleep on the […]

 By Andrew Hanson* In his “Contract with the American Voter,” Donald Trump promised to “cancel all federal funding” to “sanctuary cities” on his first day in office. Can the federal government force states and cities to comply with its immigration enforcement agenda? It depends on how it tries to induce the state and local governments […]

By Tejinder Singh* It is difficult to overstate the effect this election is likely to have on the composition of the Supreme Court. Prior to election day, the Democrats were favorites to win the White House and the Senate. Had they done so, the likely result would have been a five-Justice mostly-liberal majority that would […]

By Andrew Hanson* After refusing to hold hearings on the appointment of Merrick Garland, President Obama’s nominee to fill a Supreme Court vacancy—because “the people” should be able to decide who nominates the next Justice—Republicans recently suggested that they would continue to leave the Court with a vacancy if the people’s decision was Hillary Clinton. […]

When President Obama took office in 2009, the economic outlook was bleak. We were losing nearly 800,000 jobs—the equivalent of laying off the entire workforce of West Virginia every month. The unemployment rate was headed to 10 percent. The auto industry and the financial system were on the verge of collapse. We were approaching a […]

As President Obama took office in January of 2009, our nation was in the depths of the worst financial crisis since the Great Depression. We were losing more than 750,000 jobs a month. Ultimately, those job losses totaled nearly nine million. Over five million American families lost their homes. Countless small businesses were shuttered, and […]

I remember well how I felt as dawn broke the morning after Barack Obama’s election as president in 2008. My hopes were boundless, my expectations unrealistic. That President Obama did not succeed in mobilizing the deeply transformative political dynamic I dared to anticipate is no doubt true, especially in light of this year’s election results. […]

The President often speaks about the strong women who have helped shape his life – his mother who raised him mostly as a single parent, his grandmother who worked for years in a bank but lost out on jobs after hitting the glass ceiling, and his wife and daughters who have provided the immeasurable strength […]

The Legal Services Corporation was established in 1974 as an independent 501(c)(3) corporation to oversee the federal grant distribution to 134 civil legal aid clinics across the country and every congressional district with a mission of “providing equal access to the system of justice in our nation.” The Board is charged with the responsibility of […]

President Obama’s eight-year term as President has corresponded almost exactly with a dramatic change in the national conversation about criminal justice. After decades of a tough on crime political consensus in this country, sentiment has shifted during the Obama years towards a recognition of the problems of mass incarceration and racial injustice in our criminal […]

One of the most impressive things about President Obama when he was just Barack to me, as my constitutional law student and research assistant at HLS in 1989-91, was Barack’s deep appreciation for history and for the impossibility of fully appreciating its unfolding while it is in the process of being made. Barack especially treasured […]

In collaboration with ACS, DOS Grant Fund, and others, we bring you… Ron Klain: The Economy & Ebola Monday, November 14 at 12 p.m. in WCC B015 Serving as the “Ebola Czar,” chief of staff to VP’s Biden and Gore, and top debate prep advisor to a number of Democratic Presidential nominees are just a […]

Mark your calendars! Harvard Law & Policy Review and the Harvard Law School Chapter of the American Constitution Society are excited to announce that we will be hosting a symposium called “Forward: A Retrospective on the Obama Years.” The symposium will feature the architects, implementers, and advocates behind President Obama’s agenda, including several past and current members of […]

By Kamika Shaw* Earlier this week, the Department of Justice settled a pregnancy discrimination lawsuit against Florence, Kentucky. While the case is certainly a victory for the Justice Department and pregnancy discrimination activists, the outcome may have little impact on pregnancy discrimination claims generally, which are usually unsuccessful. The Justice Department brought the suit under […]

by Atty. Steve Churchill* As The New York Times recently reported in a three-part series, employers increasingly are relying on mandatory arbitration agreements to force their workers to resolve employment disputes in arbitration instead of court (where a worker usually has the right to a jury trial). While arbitration can result in faster outcomes, it […]

by Laura Sanders* As the presidential election rages on, the Obama administration is quietly considering how to respond to an unprecedented foreign invasion. On October 7, the Obama administration publicly acknowledged for the first time that the Russian government was probably responsible for a cyber attack on the Democratic National Committee (DNC) that resulted in […]

By Edward Nasser* Wells Fargo & Co. Chairman and CEO John Stumpf resigned this week, effective immediately, under intense public pressure for the bank’s sales-tactics scandal and his inelegant handling of the fallout. Mr. Stumpf won’t receive a severance package, relinquished $41 million in unvested equity awards, and agreed to forgo salary during an independent investigation […]

by Lucy Dicks-Mireaux* In the first veto override of the Obama administration, Congress enacted the Justice Against Sponsors of Terrorism Act (JASTA), a law that will allow September 11 victims and their families to sue Saudi Arabia’s government for allegedly backing the attacks on the United States. Fifteen of the nineteen men who carried out the […]

by Greg Tsioros* New Texas Firearm Laws Raise Concerns As of January 1st, 2016, it is now legal for some Texas citizens to openly carry loaded handguns in public places. Texas has now joined a group of state governments that are expanding rights for pro-gun advocates at a time when gun violence is a massive […]

by Carney Shegerian* The Equal Employment Opportunity Commission (EEOC) recently released a report revealing the inadequacy of employers’ efforts to prevent sexual harassment. The EEOC said in a statement that employer training, which has been used for over 30 years, “has been ineffective and focused on simply avoiding legal liability,” rather than preventing harassment from […]

By Isaac Saidel-Goley* In honor of Constitution Day, I reflect on what I have learned from countless pages of constitutional law cascading from a brief document that I have had the privilege to spend the past few years of my life studying. I have learned that the Constitution is not, and has never been, perfect. […]

By Simon Hedlin* More than a hundred blacks have been shot and killed by the police this year. According to data compiled by The Washington Post, nearly 600 individuals have died in police shootings in 2016. About half of those killed were ethnic minorities, and blacks were more than twice as likely to be fatally […]

By Amanda Woog, JD, and Shetal Vohra-Gupta, PhD* Introduction Earlier this year, in Whole Woman’s Health v. Hellerstedt, 579 US _ (2016), the Supreme Court held unconstitutional two provisions in Texas’s 2013 omnibus abortion law. The provisions were designed to shutter abortion facilities – after the law passed, more than half of Texas’s 41 abortion […]

  The Harvard Law and Policy Review is excited to announce the release of Volume 10.2! Volume 10.2 explores cutting edge policymaking at the state level—examining meaningful changes, setbacks, and lessons learned—as well as the legal questions surrounding state innovation. It also includes articles by Catherine MacKinnon, Brishen Rogers and others on important, topical legal and […]

By Benjamin Rajotte and Vikram J. Kapoor* Imagine that you were hurt by something beyond your control. Maybe a faulty product, or a commercial plane crash. Something big and painful to us and many other people. Amidst the emotional turmoil, we might be fairly motivated to recover for our losses. But what if we could […]

By Rose Carmen Goldberg* “Welcome to Groundhog Day,” as former Justice Scalia once said. The scene is familiar. This month, yet another pharmaceutical company has voiced opposition to use of its drugs in executions. In a public statement, pharmaceutical juggernaut Pfizer announced it will not supply drugs for lethal injections, and will enforce strict distribution […]

By Ana Choi* In the wake of the Supreme Court’s decision legalizing same-sex marriage in Obergefell v. Hodges last summer, many conservative states have begun to pass legislative measures trying to stem the progress made by the LGBTQ community. North Carolina passed a law prohibiting transgender individuals from using bathrooms that do not match the […]

By Lisa Heinzerling* As I have argued elsewhere, the transparency achieved by federal laws relating to food is only partial, and sometimes only serves to conceal a lie. If one wanted to see this principle in operation, one might turn to a recent federal district court decision from California. In Backus v. Nestlé, the court […]

Calling all progressive thinkers, practitioners, academics, and authors! Harvard Law & Policy Review (HLPR), the official journal of ACS, is accepting 10,000-15,000 word submissions for publication as part of our symposiums on the following topics: Beyond the War on Drugs: Privacy, Prescription, and Punishment America in Debt: Borrowers, Creditors, and Forgiveness in the Age of Austerity Every issue […]

By Tommy Tobin* Starting this August, Texas law will mandate that the state’s public colleges and universities allow the carrying of concealed weapons onto campus. Next academic year, many individuals with concealed weapons will be able to walk onto campus, into classrooms, and around students as long as they have the requisite concealed weapon permit. […]

 By Josh Carpenter* The United States has two distinct health systems for the poor: generally, one for blue states and one for red states. One system provides health insurance to the disadvantaged through Medicaid expansion. Over 30 states have elected to expand Medicaid through the Affordable Care Act or opted for a modified version. Democrats […]

By Julian Polaris* This is a golden age for access to healthcare in America. In 2015, over 90% of Americans had health coverage, the highest insurance rate in the 50 years the federal government has collected insurance data. This astonishing progress is due in large part to the Affordable Care Act (ACA): President Obama recently […]

By Isaac Saidel-Goley* Justice Antonin Scalia’s passing on February 13 has fundamentally altered the ideological composition of the Supreme Court. The Court has for decades consistently leaned Right and suddenly finds itself leaning Left. This shift in the composition of the Court provides a rare opportunity for abolitionists to successfully challenge the constitutionality of capital […]

By Annise Parker* Governing is often an impracticable job performed with insufficient tools by inadequately prepared people, sometimes in a system designed to prevent progress. Yet it is necessary; human beings in community must have a method of decision-making. Why, after thousands of years of trying, have we not perfected the process? Certainly partisanship, ego, […]

By Annise Parker* Cities across America are facing a looming crisis caused by a failure to adequately invest in critical infrastructure. The water crisis in Flint was clearly a failure of leadership, but it was equally a failure to maintain a public infrastructure system necessary to sustain life. Ten years ago, we were having a […]

By Sharmila L. Murthy* A growing number of water crises across the United States underscore the need to ensure that all Americans have access to safe and affordable water for drinking, sanitation, hygiene and other basic needs.  From lead-contaminated water in Flint and Jackson to the massive water shut-offs in Detroit and Baltimore, affected residents […]

By Robert Seaney and Jake Glendenning* These past couple of weeks have been exciting for those interested in the future of space. Astronaut Scott Kelly returned to earth after a record-setting year-long stint in the International Space Station, and SpaceX attempted their fifth rocket landing, with mixed yet valuable results. Given these two significant milestones […]

By Rachel Labush* I am a staff attorney at Community Legal Services of Philadelphia where I defend low income homeowners in foreclosure. By saving my client’s homes through loan modifications, I am holding the mortgage companies to the contracts that they have signed and the laws that govern their conduct. Federal Housing Administration (FHA) loans […]

By Charles McGonigal* Political parties play strong roles in our government, but they should never be confused with actual parts of the government (e.g., Congress, agencies, officeholders). Current election processes, however, risk encouraging this confusion. State governments run parties’ candidate selection processes (primary elections), and general election ballots list the party affiliation of each candidate. […]

By Joshua Kaiser Americans think we know an awful lot about our penal system. Yet policymakers, jurists, academics, offenders, and the public alike remain largely ignorant of more than 35,000 hidden sentence laws across the nation. “Hidden sentence” refers to any punishment imposed by law as a direct result of criminal status, but not as […]

By Mary Ziegler* This week, after the Supreme Court heard argument in Whole Women’s Health v. Hellerstedt, it seems tricky to predict the future of abortion rights. Justice Scalia’s passing and the ambiguity of Justice Kennedy’s stand make any bet on the outcome unwise. Just the same, history can still give us a sense of […]

By John A. Deighton* Data, says Professor Lawrence Summers, is the new oil, “a hugely valuable asset essential to economic life.” Personal data, the kind of data that invites thoughts of privacy, is a big part of that “hugely valuable asset.” My colleague Peter Johnson and I recently estimated that marketers paid about $200 billion […]

By Ronald E. Hampton* Critics of community policing say that the idea of a friendly beat officer acting as some magic bullet solution for serious crimes such as murders, rapes, assaults, big-time, sophisticated drug dealing and the rising tide of violence fueled by drugs, is laughable. Yet community policing techniques are appropriate for more serious […]

By Ronald E. Hampton* Many African-Americans today believe that law and order is not being kept in their communities. The average African-American citizen is terribly dissatisfied with the police and their services in his/her neighborhood. However, in some parts of America, there is an ongoing effort to dramatically reshape the roles of both police officers […]

HLPR is excited to announce that Volume 10.1 has been published and is now available online. This volume’s symposium topic is Policing in America on the 50th Anniversary of Miranda v. Arizona, featuring a foreword by Senator Cory A. Booker and Roscoe Jones, Jr. and articles by Elizabeth Joh, Franklin Zimring, Kara Dansky, Katherine Beckett, and Chief Edward Flynn. Volume 10.1 also […]

By Robert Seaney* The passing of one of America’s most prolific jurists has sparked a fierce debate over Constitutional interpretation in an entirely different branch of government. Senators Ted Cruz and Mitch McConnell immediately took to Twitter to express their intentions to block any nomination advanced by President Obama; Senator Elizabeth Warren responded that such […]

Speaker Katherine Beckett, Clarence and Elissa M. (“Lee”) Schrag Faculty Fellow at the University of Washington   By Isaac Saidel-Goley Summary Prof. Beckett discussed some of the problematic uses of police discretion, while also arguing that there are ways to channel police discretion to promote social and racial justice. As a case study, Prof. Beckett […]

Panelists: Franklin Zimring, William G Simon Professor of Law at U.C. Berkeley Philip Heymann, James Barr Ames Professor of Law at Harvard Law School   By Kate Epstein “Every year there are dozens of articles in law reviews about capital punishment, and there are none about the use of lethal force,” said Prof. Frank Zimring. […]

  By HLPR Staff When we talk about “the police,” what do we mean? On February 9, the second day of the 2016 HLPR Symposium, the focus was on the evolution of American policing. Moderated by Christine Cole, Vice President of Community Resources for Justice, the panel featured  Milwaukee Chief of Police Edward Flynn and […]

  Panelists: Elizabeth Joh, UC Davis School of Law Professor Thomas Abt, Harvard Kennedy School Adjunct Lecturer and Program in Criminal Justice Senior Research Fellow Vivek Krishnamurthy, Harvard Law School Cyberlaw Clinical Instructor   By Ana Choi On Monday, the Harvard Law and Policy Review kicked off its annual symposium featuring the articles in our […]

By Michael Admirand and G. Ben Cohen * “We are not final because we are infallible, but we are infallible only because we are final.” [1] Justice Robert Jackson’s famous quote pinpoints the consequences of final judgments in the United States Supreme Court. These consequences are most devastating in the arena of capital punishment, where […]

By Sam King* Bad technology is pervasive, but it doesn’t have to be. Healthcare.gov’s initial problems threatened to derail the Affordable Care Act and took a tremendous effort to fix. The Department of Veterans Affairs (VA) has 98,000 disability claims that have been in a backlog for over 125 days, partly because the technology wasn’t […]

By Peg Perl* Today is the sixth anniversary of the U.S. Supreme Court decision in Citizens United v. Federal Election Commission. The electorate has survived three election cycles of being bombarded by advertising funded by almost unlimited amounts of outside group spending in candidate races from local school board to President of the United States, […]

By Andrew Freedman* Samuel Caldwell was relaxing in Colorado’s Lexington Hotel when federal agents pounded at his door. It was October 2, 1937, and Caldwell would become the first American arrested for selling marijuana. Seventy-seven years later, a few miles away from the old Lexington hotel, Iraq War veteran Sean Azzariti became the first person […]

By Chief William G. Brooks III* In the words of U.S. Supreme Court justice William Brennan, there is “nothing more convincing than a live human being who takes the stand, points a finger at the defendant, and says ‘That’s the one!’”  But we now know that such compelling evidence can be wrong.  According to the […]

By Lauren Cecilia Ojeda Behgam* In September of 2015, the USDA and EPA announced an ambitious goal of reducing food waste in the United States by 50% by 2030. This announcement arrives in the midst of increasing conversations about the expansive challenge of lost, wasted and uneaten food in our industrialized food system. To put […]

HLPR is seeking submissions for its Student Note Competition, to be published in Vol. 10.2 in summer 2016. We are seeking policy-oriented pieces that are 4,000–13,000 words, shorter in length than a typical journal article. The deadline for submissions for the Summer 2016 issue is Friday, January 8th. Submissions should be sent to HarvardLPRSubmissions@gmail.com with the subject line “Student Note […]

By Julie Bachur Gopalan and Allison Wallace, CollegeSpring* Increasing the educational and professional prospects of low-income students is one of the most pressing social justice issues of our time. The Lumina Foundation estimates that over two-thirds of all U.S. jobs will require a postsecondary degree by 2018. Yet, only 9% of students in the bottom […]

By Maureen Berner* What if we could tackle childhood hunger, develop local businesses, and create community jobs in the summer at the same time? There are millions of dollars in local food system sales being left on table, and millions of children who could be served by an established program, if we can only figure […]

By Peg Perl* Many of us know state government is often the better venue for a particular court case or legislative initiative. U.S. Supreme Court Justice Brandeis praised states as “laborator[ies]” of democracy. Earlier this year, a poll found that over 60% of Americans thought state and local government were more likely to provide better […]

By Ana Choi* In the aftermath of the recent terrorist attacks in Paris, panic has engulfed the United States. The fact that the attacks occurred in France—rather than in a distant and war-torn country that we can psychologically distance ourselves from—has shattered people’s sense of security and caused the threat of terrorism to loom larger […]

By Micaela Connery* Last week the New York Times shared the findings of a disability employment study by the National Bureau of Economic Research.  While conclusions showed improvement since the 1990 passage of the Americans with Disabilities Act, the United States still has a long way to go in the realm of employment for people […]

By Alex Gazikas* On March 16, 2015, the San Diego Regional Water Control Board voted 6-0 to reject a proposed five-mile extension of California’s 241 toll road. This five-mile extension, known as the “Tesoro Extension Project,” would have been the first part of a proposed extension that would have cut directly through San Clemente State […]

By Isaac Saidel-Goley* Support for small, decentralized government with increased local control is often described as a fundamental principle of conservative ideology and a primary talking point for conservative politicians. Conservative politicians and pundits often use this rhetoric as a strategy to attack progressive candidates and policy by portraying them as overbearing or even pseudo-dictatorial. […]

By HLPR Online Staff Prosecutors seem to be caught in a bind. Last week, the Manhattan D.A.’s high-profile fraud trial against three former leaders of the now-defunct law firm Dewey & LeBoeuf came to an anticlimactic end with the judge declaring a mistrial.  After more than 22 days of deliberation, the jury agreed to acquit […]

By Thomas Tobin* Lawyers and doctors are both trained to ask their clients uncomfortable questions. We expect that the questions these professionals ask will help them reach more informed determinations for their clients. Lawyer-client and doctor-patient relationships have special legal significance as the open exchange with these professionals often elicits private information that should remain […]

By Peg Perl* Over the last 10 years, the U.S. Supreme Court has repeatedly struck down campaign finance spending bans and contribution limits while keeping disclosure requirements intact. According to the Brennan Center, the Roberts Court has invalidated six different major provisions in federal and state laws and “significantly reshaped the legal landscape dictating how […]

By: Charles McGonigal* On Friday, Alabama closed thirty-one Department of Motor Vehicles (DMV) offices. These closings wouldn’t normally be national news, but Alabama has selectively closed offices in counties with high populations of people of color, leaving no facilities in those counties to issue driver’s licenses. As photo IDs are now required to vote in […]

By G. Ben Cohen and Michael Admirand* “We are not final because we are infallible, but we are infallible only because we are final,” Justice Jackson described the United States Supreme Court. In no area of law does this finality have more devastating consequences than capital punishment. This Wednesday, the State of Oklahoma plans to […]

By Michael Pierce* Both the 15th Amendment and 1965 Voting Rights Act are crucial tools for protecting citizens’ right to vote, but it’s important to remember that they set a floor: progressive states shouldn’t celebrate their not making it more difficult to vote. Instead, they should be asking themselves how they can make it easier. The answer to that question lies […]

By Ana Choi In commemoration of the 50th anniversary of the Voting Rights Act, HLPR has published a new article in which Ryan P. Haygood exposes the damage caused by Shelby County in the past two years. Fifty years ago today, the landmark Voting Rights Act of 1965 (“VRA”) was signed into law. The VRA […]

By Beth Caldwell* Three years ago, in Miller v. Alabama, the Supreme Court ruled that sentencing juveniles to life without parole (LWOP) under mandatory sentencing schemes amounts to cruel and unusual punishment in violation of the Eighth Amendment. Over the past few years, courts have reached conflicting conclusions regarding whether the rule the Supreme Court pronounced […]

By Charles McGonigal The death penalty is the government’s deepest moral quagmire. An execution is irrevocable and heavily resembles the crimes that it punishes. To make peace with this decision, society deploys resources to try to avoid executing innocents (due process, defense counsel, mandatory appeals) and to distinguish it from homicide. One of the most […]

By Francesca Procaccini In a seismic, albeit relatively foreseeable, week at the Supreme Court—one in which love and equal justice triumphed over antiquated beliefs and modes of interpreting the Constitution, in which President Obama’s landmark health care bill again repelled attack, in which rights of criminal defendants were safeguarded and the viability of solitary confinement […]

By Tom Watts* Today, on the anniversary of Lawrence v. Texas and United States v. Windsor, the Supreme Court declared in Obergefell v. Hodges that states that deny legal recognition to same-sex couples are violating the Constitution. Marriage equality is the law of the land. This is a victory for the gay rights movement, which […]

By Professor Erwin Chemerinsky* If not for the deep ideological divisions surrounding the Affordable Care Act, there would be no doubt that those who purchase insurance on exchanges created by the federal government should receive tax credits.   In King v. Burwell, Chief Justice Roberts and Justice Kennedy transcended the partisanship surrounding the law and joined […]

By Rose Carmen Goldberg* A series of botched executions over the past several years has engendered increasing criticism of lethal injection. These high-profile miscarriages have involved prolonged visible suffering, including violent spasms and outcries about intolerable pain. Death row inmates are turning to courts for protection from painful deaths like these. Last month the Supreme […]

By: John Grossman and Marcia Chong* Pay for Success (PFS) is a groundbreaking, bi-partisan, public-private movement that drives resources toward high-performing social service programs. In so doing, PFS measurably improves the lives of people in need. PFS replaces traditional cost reimbursement government contracts with performance-based contracting where outcomes and impact are rigorously measured and government […]

To mark today’s oral arguments in the same-sex marriage cases, HLPR online has released a Student Note from Volume 9.2 early! The Note is Tom Watts’s From Windsor to Obergefell: The Struggle for Marriage Equality Continued. Tom Watts, a fourth-year JD/MPP at Harvard Law School and Harvard Kennedy School, writes: Prior scholarship has examined the legal history of the […]

By Tom Watts* This is the fourth and final post in a series of blog posts previewing some of the conceptual questions that may appear in the same-sex marriage oral arguments on Tuesday. Part I is here, Part II is here, and Part III is here. In the previous three posts, I discussed the ways in which […]

By Tom Watts* This is the third in a series of blog posts previewing some of the conceptual questions that may appear in the same-sex marriage oral arguments on Tuesday. Part I is here, and Part II is here. In previous posts, I discussed whether same-sex marriage bans classify by sexual orientation. If they do, […]

By Tom Watts* This is the second in a series of blog posts previewing some of the conceptual questions that may appear in the same-sex marriage oral arguments on Tuesday. Part I is here. In the previous post, I discussed the prospect of the Supreme Court deciding that a state same-sex marriage ban was a […]

By Tom Watts* This is the first in a series of blog posts previewing some of the conceptual questions that may come up in the same-sex marriage oral arguments on Tuesday. Part II is here. On Tuesday, we will have the legal equivalent of the Super Bowl, a presidential election, and the finale of Seinfeld […]

By Martha Coakley and Mary Coakley-Welch* We all admire the Framers of our Constitution and Bill of Rights, whose visionary document has such elasticity and longevity!  The Supreme Court uses the framework to decide legal issues never even imagined at the time, from the Internet to same-sex marriage. Framing is as crucial now as it […]

By Oren Bar-Gill* This is the era of Big Data. We live on the Internet. And (almost) everything about our lives – our choices, preferences, interests, location, friends, employment, income, and more – is potentially being tracked. Moreover, information that we do not reveal directly can often be inferred with the help of powerful computer […]

By Michael Grinthal* If in the last 45 years you have read a law review article about, attended a conference on, or taken a course about lawyering for social change, then you’ve come across the phrase “community lawyering” (or “rebellious lawyering,” or “critical lawyering,”[1] or “law and organizing”). The meaning of community lawyering can sometimes […]

By HLPR Online Staff On Monday, in what animal rights activists are calling a first of its kind ruling, a New York state trial court issued an order to show cause in a habeas corpus proceeding on behalf of two chimpanzees being held for research at Stony Brook University. In granting the order, the court […]

To mark the release of Volume 9.1, Notice & Comment will be highlighting each of the articles in its own blog post. Today’s featured article: Senator Sheldon Whitehouse’s Conservative Judicial Activism: The Politicization of the Supreme Court Under Chief Justice Roberts. Senator Whitehouse (D-RI) writes: A troubling and unmistakable trend has developed over several decades, and accelerated in […]

By Julia Graber* On February 26th, something historic happened: The public interest won at the FCC. After millions of people filed comments urging the agency to keep the Internet open, the FCC voted to adopt strong Net Neutrality rules. In doing so, the FCC not only opposed the cable companies trying to kill Net Neutrality, […]

To mark the release of Volume 9.1, Notice & Comment will be highlighting each of the articles in its own blog post. Today’s featured article: Professor Abner S. Greene’s Religious Freedom and (Other) Civil Liberties: Is There a Middle Ground? Professor Greene, who is the Leonard F. Manning Professor at Fordham Law School, writes: The question will always be in […]

To mark the release of Volume 9.1, Notice & Comment will be highlighting each of the articles in its own blog post. Today’s featured article: Professor Marci A. Hamilton’s The Case for Evidence-Based Free Exercise Accommodation: Why the Religious Freedom Restoration Act Is Bad Public Policy. Professor Hamilton, who holds the Paul R. Verkuil Chair in Public Law at […]

To mark the release of Volume 9.1, Notice & Comment will be highlighting each of the articles in its own blog post. Today’s featured article: Kara Loewentheil’s The Satanic Temple, Scott Walker, and Contraception: A Partial Account of Hobby Lobby’s Implications for State Law. Ms. Loewentheil, a Research Fellow and Director of the Public Rights/Private Conscience at Columbia […]

To mark the release of Volume 9.1, Notice & Comment will be highlighting each of the articles in its own blog post. Today’s featured article: Alex J. Luchenitser’s A New Era of Inequality? Hobby Lobby and Religious Exemptions from Anti-Discrimination Laws. Mr. Luchenitser, Associate Legal Director for Americans United for Separation of Church and State, discusses the aftermath of the Supreme Court’s Hobby […]

By Ana Choi On April 28, the Supreme Court will hear oral arguments for Obergefell v. Hodges, the case that could finally and conclusively bring marriage equality to all states. Public attention is mostly focused on what the Supreme Court will decide and how they will reach their decision, but this case also brings up […]

By Arusha Gordon Last month marked the 50th anniversary of Bloody Sunday, commemorating the marches in Selma that led to the passage of the Voting Rights Act. The fight for the Voting Rights Act was in large part successful because the atrocities of Bloody Sunday were caught on camera and broadcast around the world. Images […]

To mark the release of Volume 9.1, Notice & Comment will be highlighting each of the articles in its own blog post. Today’s featured article: Professor Nelson Tebbe’s Religion and Marriage Equality Statutes. Professor Tebbe, a visiting professor at Cornell Law School, writes: To date, every state statute that has extended marriage equality to gay and […]

By Allison Schultz On March 26th, Indiana Governor Mike Pence signed Indiana’s Religious Freedom Restoration Act (RFRA) into law. Unlike the federal RFRA and most other state RFRAs, Indiana’s law explicitly stated that it could be invoked as a defense in private litigation — lawsuits in which the government is not a party. As the […]

By Amy Fettig Even as transwomen like Laverne Cox and Janet Mock grace the cover of Time magazine or facilitate dialogue on MSNBC, the reality is that trans people, and transwomen in particular, still can’t get justice in our federal courts.  But now there’s a chance that too could change.  Last week a petition for […]

By Ezra Rosser Having become the officially backed U.S. city to bid on the 2024 Olympic Games, Boston now faces the problem that the national gains of hosting the Olympics are under-recognized and the local losses associated with creating Olympic venues are under-compensated.  The failure to recognize and account for the winners and losers when […]

By Charles McGonigal Andreas Lubitz was medically unfit to work when he apparently crashed the Germanwings flight last Tuesday, according to a doctor’s note found in Lubitz’ apartment. Why? Nobody knows. Germanwings, as his employer, would not know because German law allows these declarations to be written without a diagnosis or reason, to protect the […]

By D. James Greiner In the previous post, I talked about how, if the goal of a legal aid organization’s debt collection litigation defense program is to prevent defendants from having to pay debts sued upon, then there might be a far cheaper way to go about fulfilling that goal, namely, by buying debts on […]

The following is a question-and-answer with Stuart Raphael, the Solicitor General of Virginia. Virginia has filed an amicus brief supporting the plaintiffs in Obergefell v. Hodges, a Supreme Court case challenging state same-sex marriage bans. Virginia’s same-sex marriage ban was struck down by a federal court last year in Bostic v. Schaefer. Q: Virginia’s amicus brief in Obergefell […]

By Michael Pierce This month, members of Congress have shown themselves paralyzed when it comes to protecting victims of sex trafficking, yet perfectly capable of acting to embarrass the President (or, as Obama argues, themselves).  Less than two years ago, budget negotiations between Democrats and Republicans deteriorated so far that the Federal Government actually shut […]

By D. James Greiner “Harry suddenly realized that the tape measure, which was measuring between his nostrils, was doing this on its own. Mr. Ollivander was flitting around the shelves, taking down boxes. ‘That will do,’ he said, and the tape measure crumpled into a heap on the floor.” —Harry Potter and the Sorcerer’s Stone […]

By Michael C. Dorf Since the Supreme Court’s 2013 decision in United States v. Windsor, invalidating Section 3 of the Defense of Marriage Act, a clear majority of lower courts to hear challenges to state laws forbidding same-sex marriage have found for the plaintiffs. Some state executive officials—like those in New Jersey and Pennsylvania—graciously accepted […]

By Lisa Ebersole Last week the Utah state legislature passed a law that would reinstitute death by firing squad as an option for capital punishment if the state were unable to maintain adequate supplies of lethal injection drugs. Many are skeptical of this seemingly barbaric and primitive method of execution—in a recent poll only 12 […]

By Ryan Cohen As a Millennial, I have few memories of protests shaking the foundations of my world the way Selma did in 1965. That’s not because there are not injustices in society, or people determined to speak out against them. Perhaps it’s partly because my generation has found a new public forum in the […]

By Tharuni Jayaraman It’s happening again. As has been reported endlessly this past week, if Congress does not act soon to pass a funding measure, the Department of Homeland Security will shut down at 12:01 AM on Saturday. Notwithstanding the endless speculation and sound bites, the long-term implications for the country of such a shutdown are […]

By Mark Tushnet The first post on this topic briefly discussed what a new Supreme Court might do about campaign finance regulation. I suggested that the best course would be to go back to the beginning, rather than try to work within the framework developed over the past forty years. Doing so would allow a […]

By Tom Watts Science has taken a beating in the policy world lately. While discussing the recent measles outbreak, Rand Paul, who is a medical doctor and should know better, said that vaccinations can lead to “profound mental disorders” (which, needless to say, is false). The Senate has also struggled with whether climate change is […]

By Mark Tushnet Suppose that a Democratic president makes a “relevant” appointment to the Supreme Court – that is, a replacement for one of the Court’s conservative justices (among whom I include Justice Kennedy). What can progressive scholars and activists say about the new Court’s agenda? Some immediate qualifications:  You shouldn’t think that the President […]

By Noah Marks The minor political crisis that unfolded over the weekend, fallout from the Presidential pardon of “Mac” and “Cheese” and Sasha and Malia’s apparent boredom, has claimed at least one person’s job. The President, puzzled by the tradition, echoed his recent immigration executive order by claiming that the act is “fully within” his […]

By Ana Choi Today, the Supreme Court will hear oral arguments for Elonis v. United States, an important case dealing with freedom of speech in the context of social media. Petitioner Anthony Elonis was charged and convicted under 18 U.S.C. § 875(c)—which forbids “any threat to injure the person of another”—after composing a series of […]

By Tom Watts In the aftermath of Ferguson, I keep reading pieces like this: what we should do now is learn, understand, and think. I find this advice irritating, because it seems futile. Things look bad right now, and social change will never come from progressives simply becoming more informed. We have to take the […]

By Daniel Pyon As the dust settles from the midterm elections, this much is clear: the final two years of President Obama’s administration will be one of two-party control. Accordingly, journalists and pundits are busy predicting what divided government means for issues on the President’s legislative agenda ranging like immigration, climate change, tax reform, and […]

by Monis Khan Last Tuesday’s midterm elections have left liberals panic-stricken as they lament lopsided losses by Democratic party candidates for U.S. Congress. For progressives paying attention to ballot measures at the state level, however, there is cause for encouragement. Even with the lowest turnout nationwide for any midterm election since World War II—a metric […]

By Najah Farley On Monday, the Supreme Court of the United States ruled in Florence v. Board of Freeholders that all individuals arrested and held in a correctional facility or jail could be subjected to a routine strip search as long as it only involves a visual inspection. Justice Anthony Kennedy wrote the controlling opinion, basing his […]

By HLPR Online Staff Since the Supreme Court’s June 2013 ruling in United States v. Windsor—holding the federal Defense of Marriage Act unconstitutional—gay rights advocates have brought a tidal wave of lawsuits across the country successfully challenging state bans on same-sex marriage. On October 6th of this year, the Supreme Court denied cert in cases […]

By Ming Cheung Over the past week, a series of tragic and senseless attacks have taken place in the United States and Canada. First, a man struck two soldiers in a hit-and-run in Quebec , another targeted the Canadian Parliament in Ottawa, and a hatchet-wielding individual assaulted police officers in New York City. All three […]

By Ana Choi On October 22, the New York City Council introduced a package of legislation aimed at addressing the problem of racial and socioeconomic segregation in New York City’s public schools. The package contains three pieces. The first piece would require the city’s Education Department to report statistics for various measures of diversity in […]

Anne King  As I wrote previously, as courts apply the Supreme Court’s decision in Wal-Mart Stores Inc. v. Dukes, observers are ever gaining new insight on how the opinion will impact future litigation.  Nearly four months after Dukes (decided 6/20/11), I thought it would be interesting to take a look at whether a noteworthy passage in the majority […]

By Jake Laperruque For the last year and a half, government surveillance and NSA monitoring have generated one of the most intense discussions in the country. The Snowden disclosures have not only brought the surveillance debate to the front page, congressional hearings, and the campaign trail, but have also significantly impacted public opinion: Most Americans believe […]

By Lisa Ebersole This week, Obama Administration officials revealed that the President is considering using his executive power to close Guantanamo. Congress has attempted to preemptively block such action by including a provision in the military spending bill that forbids the transfer of any of Guantanamo’s prisoners back to the United States. However, Obama could […]

By Tharuni Jayaraman Thursday night was a busy night in the voting rights world. Just before 9:00 PM EST, District Court Judge Ramos, in Veasey v. Perry, enjoined Texas’ photo identification law, SB 14. She held that the law (1) “creates an unconstitutional burden on the right to vote,” (2) has an impermissible discriminatory effect against […]

Third in the HLPR Case Comment series, “Least Restrictive Means”: Burwell v. Hobby Lobby, by Noah Marks! Noah examines a strange leap in the Supreme Court’s reasoning in Hobby Lobby that has left the way open for further restrictions on access to contraceptives.

Second in the HLPR Case Comment series: McCullen v. Coakley: How Should We Reconcile the First Amendment with Abortion Rights? Revisiting the Supreme Court’s June decision regarding protestors or “counselors” who located near the entrances to abortion clinics, Ana Choi examines the conflict between free speech rights and abortion rights in this case.

Over the summer, several members of HLPR worked on Case Comments. They discuss major decisions from the last two months (May and June) of the Supreme Court’s most recent term. Compared to our blog posts, they benefit from being able to relate earlier decisions to later ones, to gauge the reaction to the decision, and to […]

By Ana Choi Last month, David Boies—the star litigator who represented Al Gore in Bush v. Gore and argued against California’s Prop 8 in Hollingsworth v. Perry—became the chairman of Partnership for Educational Justice (PEJ), an organization founded by former CNN anchor Campbell Brown to pursue lawsuits challenging teacher tenure. According to an interview with the […]

HLPR welcomes new students to HLS!  HLPR is the official national journal of the American Constitution Society.  There are three opportunities this week to learn about HLPR and sign up for positions: Journals Open House – Wednesday, Sept. 17, 12-2pm in WCC 3039 Journals Fair – Wednesday, Sept. 17, 6-8pm in Milstein HLPR Information Session […]

By Tom Watts Today, the Senate rejected a constitutional amendment that would have reversed many of the Supreme Court’s campaign finance decisions, most notably Citizens United. Combine this with the defeat of the lone Republican candidate for Senate who supported campaign finance reform and was backed by the Mayday SuperPAC, and the past couple days […]

HLPR Online has just released two new student notes, Modern Approaches to Financial Crime by Andrew Chinsky and Electoral Reform After McCutcheon by Tom Watts.

Jake Laperruque  Why can’t those darn Republicans stay focused on the issues?  At a time like this, when there are No Jobsleft in the American economy, I want our GOP contenders to be discussing their plans to reduce unemployment.  But one presidential candidate has found a more important issue, an issue that poses a threat to […]

Volume 8-2 of HLPR is now posted on our website! See below for the articles! Symposium: Smart on Crime Foreword Kamala D. Harris Corporate Headhunting Daniel C. Richman A Public Accountability Defense for National Security Leakers and Whistleblowers Yochai Benkler California Prison Downsizing and Its Impact on Local Criminal Justice Systems Joan Petersilia Marijuana Legalization in […]

By Tom Watts Yesterday morning, the D.C. Circuit decided Halbig v. Burwell, and the Fourth Circuit decided King v. Burwell. They addressed whether the text of the Affordable Care Act permits subsidies for individuals who purchase insurance on the federal health care exchange. The D.C. Circuit decided that it did not, while the Fourth Circuit […]

by Noah Marks Yesterday morning, the Supreme Court decided Burwell v. Hobby Lobby, holding 5-4 that religious owners of closely-held corporations are exempt from the contraception coverage requirement of the Affordable Care Act based on the 1993 Religious Freedom and Restoration Act. Writing for the majority, Justice Alito strains to emphasize the limited scope of […]

By Tom Watts Today, the Supreme Court decided Burwell v. Hobby Lobby. In this post, I examine an issue that the Court passed over: whether Hobby Lobby’s belief is actually religious. The Court presumed so, but their presumption was incorrect, and the issue is dispositive. This makes the Court’s decision wrong. The First Amendment protects […]

By Jake Laperruque Editor’s note: Jake is responding to the original version of our second post on Riley v. California.  In my opinion, this post’s critique of the Riley decision is wrong for several reasons: First, it complains that the Court did not draw an impossible distinction. There is no realistic way to make a […]

By Tom Watts Yesterday, the Supreme Court decided National Labor Relations Board v. Noel Canning, holding that President Obama’s NLRB appointees exceeded his recess appointments power due to the Senate’s pro forma sessions. For a summary of the decision, I suggest the excellent coverage on SCOTUSblog or Eric Posner’s piece for Slate (which also features […]

By Ana Choi The Supreme Court has handed down its decision in McCullen v. Coakley, holding that the Massachusetts statute creating a 35 feet buffer zone around abortion clinics is unconstitutional on First Amendment grounds. Although the holding is unanimous, the majority opinion (written by C.J. Roberts and joined by JJ. Ginsburg, Breyer, Sotomayor, and […]

By Noah Marks Part 2 in a 2-part series Editor’s note: At the author’s request, this post has been revised substantially since its original posting to more clearly express the author’s intent.  Earlier today, the Supreme Court issued an opinion covering both Riley v. California and United States v. Wurie, holding that police must obtain a warrant […]

By Daniel Bogdan Part 1 in a 2-part series Editor’s note: At the request of the author, the title has been changed since the original publication of this post. Today, in Riley v. California, the Supreme Court held that law enforcement officers may not search an arrested person’s cellphone incident to arrest without a warrant.  Ruling […]

By HLPR Online Staff Yesterday, in Halliburton Co. v. Erica P. John Fund, Inc., the Supreme Court, among other holdings, upheld the more than 25-year-old “fraud on the market” theory for securities fraud class actions. Though at first glance this complex case may seem to involve only a very specific and technical distinction, the end […]

Marshall Thompson  A year ago, it seemed to me that the Defense of Marriage Act, or DOMA, wasn’t going anywhere despite some challenges to it in federal court. Then the Obama administration announced that it would not defend the law, which it considered to be unconstitutional. Now a bankruptcy court in California has struck down the law, stating […]

By Tom Watts A California trial court judge decided in Vergara v. California today that California’s teacher tenure system violates the state constitution. This is a big deal: teacher tenure has been a political controversy for years, and, while anti-tenure advocates have repeatedly won legislative victories, this is their first judicial victory. However, I want to […]

By Tharuni Jayaraman In a recent study that has created some buzz (The Guardian, The Boston Globe, and The Atlantic), researchers Aurora Sherman and Eileen Zurbriggen investigated whether playing with a Barbie doll for just five minutes could affect a girl’s belief in the type of career she could pursue. To test their hypothesis, they […]

By Noah Marks  Last week, the Wall Street Journal broke the news that the FCC’s third attempt to regulate “in defense” of net neutrality would allow “commercially reasonable” agreements between content providers and Internet service providers. The “commercially reasonable” test aligns with the January DC Appeals Court decision striking down the FCC’s previous attempt but […]

HLPR Online editorial staff Writing for the online edition of the Harvard Law and Policy Review, Jonathan Peters argues that the Justice Department should proceed carefully in any prosecution of Wikileaks or Julian Assange due to serious constitutional concerns: [T]he standard the Court used for prior restraint in the Pentagon Papers case could be roughly the same […]

By Ana Choi The comprehensive immigration reform package passed by the Senate last year has yet to be taken up by the House of Representatives, due to partisan disagreement over issues such as the path to citizenship and reinforcement of border security.  Meanwhile, President Obama has come under increasing pressure to use his executive power […]

Micah Altman, MIT Libraries; Brookings Institution Michael P. McDonald, George Mason University; Brookings Institution Discussion of redistricting reform often generates more heat than light. Much of the commentary dismisses the possibility of thoughtful, responsible electoral mapping altogether. Critics who dismiss responsible electoral mapping generally takes one of two lines of argument: Either they urge the […]

Mr. Robert Maguire did not express any opinions about what the future of campaign finance should be; he just presented the findings of his research. Likewise, Mr. O’Mara made it clear that his comments only reflect his personal opinion and not that of Congressman Sarbanes. With the McCutcheon decision fresh in everyone’s minds, the panelists […]

This afternoon, the Harvard Law and Policy Review was privileged to host a panel on voting rights. The panelists (James Blacksher, Heather Smith, Rachel Schneider, and Ronnie Cho) discussed the implications of recent Supreme Court decisions and restrictive voting laws on voter registration and the franchise. Although the panelists discussed the significant setbacks that voting […]

  HLPR’s Spring 2014 Symposium on Elections in America, held on Saturday, April 5, began with a panel on electoral districting.  Districting is one of the most consequential aspects of elections—often deciding outcomes, ensuring perennial incumbency, and strengthening or weakening the political influence of particular communities—yet it is also one of the least transparent processes […]

  This year’s keynote speaker was Congressman John Sarbanes (D-MD). Congressman Sarbanes is the author of the Government by the People Act (H.R. 20), which would create a new public campaign financing system to give candidates a way to wage campaigns without taking donations from special interests. The congressman spoke about how, because his district […]

  The HLPR Elections in America Symposium, held on April 5, 2014, opened with welcoming remarks by Dean Martha Minow of Harvard Law School. Dean Minow noted the particular timeliness and relevance of the symposium, in light of the recent Supreme Court decision in McCutcheon v. FEC. Reflecting on the problems that plague the American […]

By Tom Watts This morning, the Supreme Court decided McCutcheon v. FEC, which struck down aggregate contribution limits in campaign finance laws (laws that limit the total amount an individual can give to all campaigns put together). This decision continues the trend of striking down campaign finance laws, a trend made famous in Citizens United […]

Come check out our Symposium “Elections in America.”   Click the link to view the Final Program!

By Ana Choi On Tuesday, March 25, the Supreme Court heard the oral arguments for the combined cases of Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius. The two cases deal with the following question: can a for-profit corporation claim a religious freedom exception from the contraceptive mandate of the Affordable Care […]

by Noah Marks  At every press conference and in every newspaper article about the rapidly changing developments in Ukraine, leaders and analysts are struggling to adapt and apply World War II and Cold War era terminology to a globalized, interconnected world. Specifically, the term “self-determination” has been nearly turned inside out between Russian declarations and […]

By Tom Watts In light of the Virginia gay marriage decision last week, Bostic v. Rainey, it seems appropriate to revisit the constitutional status of gay marriage. The courts have moved rapidly on this issue, and a summary from even a year ago would do little justice to the current situation. As Slate has pointed […]

Author: Emily Hogin Like a lot of people from families affected by addiction, I cried when I read that Philip Seymour Hoffman died. The details of his relapse and death are chilling: after 23 years sober, he told TMZ a year ago that he had fallen off the wagon after taking prescription painkillers and checked […]

This is the twelfth in a series of interviews I’m conducting with lawyers and scholars who’ve made a mark on freedom of expression. Follow me @jonathanwpeters on Twitter.   For the past 27 years, William Bennett Turner has taught First Amendment courses at the University of California at Berkeley. In a legal career that spanned […]

Welcome 1Ls! We are the official, student-run journal of the American Constitution Society.  We publish articles from progressive legal scholars and policy experts both in print (twice a year) and online (constantly updated).  We can’t wait to meet you at the activities fair in September and answer any questions that you have.

By Tom Watts Today, the Supreme Court dismissed the appeal on California’s Proposition 8 in Hollingsworth v. Perry, allowing the District Court’s decision overturning Prop 8 to stand. This decision returned California to the list of states permitting same-sex marriage. With this decision, accompanied by the defeat of DOMA in United States v. Windsor, today […]

1:50: Gene Nichol, setting a modest tone for his address: “If George Bush taught us anything, it’s the importance of diminished expectations.” 1:52: Nichol won’t be measuring things, “The bigger I get, the less interested I get in measuring things.” Crack at law students, who are bad at measuring things. 1:54: “These are chilly times,” […]

2:20 — Jacqui Bowman of Greater Boston Legal Services kicks off the final panel of the day with a picture of a day at GBLS. 2:24 — Bowman: GBLS makes difficult choices between serving people in dire circumstances, gives example of choosing to represent one battered woman seeking a divorce but not another because the […]

12:15- Panel 2 on Today’s Pro Bono Efforts. Panelists are Richard Zorza, Jeanne Charn, Scott Cummings, David Grossman, and Katherine Hudgins. 12:15 – Introductory remarks by Alex Smith. Importance of pro bono for access to justice forces us to evaluate how much good existing pro bono efforts are doing and how it can be improved. […]

By Craig Auster One of the ways that the Obama administration has tried to engage the public is the “We the People” online petition tool.  On January 10th a petition was launched asking the White House to “fully engage in efforts to ratify the 1972 Equal Rights Amendment (ERA).”  The petition needed to get 25,000 signatures […]

10:30 Welcoming Remarks by Dean Minow 10:33 Alex Smith- symposium coordinator thanking everyone who put work into today. 10:35- room is almost full, so great to see so many people showing support! 10:37- Smith says a great tragedy in access to justice is how few people are aware/talking about this crisis.

One of the ways that the Obama administration has tried to engage the public is the “We the People” online petition tool.  On January 10th a petition was launched asking the White House to “fully engage in efforts to ratify the 1972 Equal Rights Amendment (ERA).”  The petition needed to get 25,000 signatures in a […]

Even as disturbing reports of alleged rapes continue to trickle in with alarming regularity, India’s Parliament recently passed the Criminal Law (Amendment) Bill, 2013.  The notoriously inert legislative process received a shot in the arm when the brutal rape and murder of a student in Delhi in December 2012 engendered national protests.  A judicial committee headed […]

By Sushila Rao Even as disturbing reports of alleged rapes continue to trickle in with alarming regularity, India’s Parliament recently passed the Criminal Law (Amendment) Bill, 2013.  The notoriously inert legislative process received a shot in the arm when the brutal rape and murder of a student in Delhi in December 2012 engendered national protests.  A judicial committee […]

Abigail Fisher claims she didn’t get into the University of Texas at Austin because of her skin color. Fisher’s lawyers argue the school violated her constitutional rights by taking race into account when it denied her admission. “There were people in my class with lower grades who weren’t in all the activities I was in, […]

By Tom Watts Yesterday, in the DOMA oral argument, Justice Scalia appeared to make a logical mistake, which created phantom marriages acknowledged by law but never created by law. He was picking up a hypothetical asked twice by Chief Justice Roberts, but he did not appear to have thought it through. As originally posed, the question […]

By Nick Nehamas Abigail Fisher claims she didn’t get into the University of Texas at Austin because of her skin color. Fisher’s lawyers argue the school violated her constitutional rights by taking race into account when it denied her admission. “There were people in my class with lower grades who weren’t in all the activities […]

This is a guest post by Josh Stearns, the Journalism and Public Media Campaign Director of Free Press. He has published numerous reports on press freedom, journalism, media consolidation and public media, and he speaks regularly about community engagement, activism and the future of journalism. Before joining Free Press, Stearns coordinated policy and communications efforts […]

By Jonathan Peters This is a guest post by Josh Stearns, the Journalism and Public Media Campaign Director of Free Press. He has published numerous reports on press freedom, journalism, media consolidation and public media, and he speaks regularly about community engagement, activism and the future of journalism. Before joining Free Press, Stearns coordinated policy and communications […]

By Jonathan Peters This is the front end of an essay I co-authored with Frank LoMonte, the executive director of the Student Press Law Center in Washington, D.C.  The essay appeared in full Friday in The Atlantic. Follow me @jonathanwpeters on Twitter. This is not your father’s journalism industry. NBC News has a Storify page, the New York Times has a Tumblr, and […]

This is the front end of an essay I co-authored with Frank LoMonte, the executive director of the Student Press Law Center in Washington, D.C.  The essay appeared in full Friday in The Atlantic. Follow me @jonathanwpeters on Twitter.  This is not your father’s journalism industry. NBC News has a Storify page, the New York Times has a Tumblr, and PBS has a Pinterest […]

By Mark Wilson Policies designed to encourage people to do things that are good for them, and discourage people from doing things that are bad for them, are not in vogue. They’re derided as the province of a “nanny state” that wants to override private individuals’ ability to decide what’s good for them.

By Najah Farley As a young person, my parents were very strict about what types of movies and television shows my sisters and I saw. Because we were Muslim, many films and television shows were off-limits, due to subject matter. Some would say they were over-protective. Over the past few years, I have attempted to […]

By Craig Auster This past month, our nation celebrated the 40th anniversary of the Supreme Court’s Roe v. Wade decision that guaranteed American women the right to choose to have an abortion.  Yet, despite 40 years of Roe as the law of the land, state legislatures are continuously trying to find new ways to undermine women’s rights. The latest attempt to […]

When the Nobel Committee awarded President Obama the Peace Prize in 2009, the world assumed that the Committee was making a political statement. The New York Times wrote that awarding President Obama the prize was “a (barely) implicit condemnation of [George W.] Bush’s presidency.” Indeed, President Obama had held the office for only nine months when the Nobel […]

It is not only the changing meaning of words that federal judges must navigate these days. There have also been some recent cases where federal courts have had to confront the physical world and make tough choices about the reality we see before us. To begin with, a D.C. District Court judge has settled the fact that decorative […]

Unconfirmed reports that a Saudi Arabian man who brutally murdered his five-year old daughter would be released after paying “blood money” to the girl’s mother have sparked intense debate and condemnation.   The victim suffered horrific injuries, including a crushed skull, broken back, broken ribs, a broken left arm and extensive bruising and burns.  The father, […]

By Hudson Kingston Last month a judge in the UK caught a fair amount of flak from everyone, up to and including the prime minister, for saying that it takes a lot of courage to commit a burglary. He received a formal reprimand, and piqued the attention of satirist David Mitchell, who said: “David Cameron said that […]

By idalton While the world’s economic interest has focussed for much of the last month on seemingly unending negotiations in the US over the fiscal cliff and debt ceiling, certain Eurozone leaders have been trying to use this respite to make progress in resolving their own crises. Although political dramas such as those developing in […]

By Jonathan Peters Follow me @jonathanwpeters on Twitter. I have no idea if it’s ironic to have 10,000 spoons when all you need is a knife (I mean, why have so many spoons in the first place?), but I do know it’s ironic to exercise your First Amendment rights in order to deport a man for exercising his First […]

By Anthony Kammer Dylan Matthews posted a fascinating interview with law professor Barak Orbach yesterday, which goes a long way toward explaining the current, withered state of antitrust law. Robert Bork, more than any other individual, is responsible for the transformation of anti-trust law from one of the most important checks against consolidated economic and political power […]

By Jonathan Peters This is the eleventh in a series of interviews I’m conducting with lawyers and scholars who’ve made a mark on freedom of expression.  Follow me @jonathanwpeters on Twitter. Rod Smolla is president of Furman University. Previously, he was dean of the Washington and Lee School of Law, dean of the University of Richmond School of Law, […]

By Hudson Kingston Why do governments kill people? Ignoring the extra cost and unequal application of the death penalty for a moment, what are the justifications for keeping it in a democratic society?

By David Yin On Nov. 9th the Supreme Court granted certiorari in Maryland v. King, 425 Md. 550 (2012), a case from the Maryland Court of Appeals, that state’s highest court. Maryland, like many states, has a statute requiring state and local police to collect DNA samples from individuals merely arrested for crimes of violence or burglary, MD […]

By Anthony Kammer Florida State University law professor Franita Tolson had an interesting guest post at Rick Hasen’s Election Law Blog this weekend, laying out an argument that might end up being important in the constitutional challenge of Section 5 of the Voting Rights Act. To provide some background, the issue before the Court in Shelby County v. Holder is […]

By Jonathan Peters Dear Walter, I teach journalism courses at the University of Missouri and Ohio University, and every semester I help freshmen and sophomores write their first stories. Many of them struggle. They don’t know what to include, where to put things, how to edit for clarity, and so on. As they fight the blank […]

By Jonathan Peters This is the tenth in a series of interviews I’m conducting with lawyers and scholars who’ve made a mark on freedom of expression.  Follow me @jonathanwpeters on Twitter. Martin Garbus is a trial lawyer and First Amendment expert who has appeared multiple times before the U.S. Supreme Court and in trial and appellate courts around the […]

By Mark Wilson Last week’s oral arguments in companion dog-sniffing cases will probably fall along predictable lines. And by “lines,” I mean “property lines.” The Court will likely reverse Florida v. Jardines on the ground that the officer who brought adorable canine cop Franky to the front door of Jardines’ house was within the curtilage, the space adjacent […]

By Yevgeny Shrago Frank D. LoMonte is the executive director of the Student Press Law Center. Before joiningthe SPLC, he practiced with the law firm of Sutherland Asbill & Brennan, he clerked for twofederal judges, and he worked as an investigative journalist and political columnist. When 51-year-old Alabama nursing student Judith Heenan repeatedly complained to her instructors about inequities in the grading and disciplinary system in her graduate program, she anticipated some disapproval. What she didn’t anticipate was being thrown out of the program for complaining – and then being told by a federal district judge that […]

By Jonathan Peters This is a guest post by Trevor Timm, an activist at the Electronic Frontier Foundation. He specializes in free speech issues and government transparency. Before joining the EFF, Timm helped the longtime general counsel of the New York Times, James Goodale, write a book on the First Amendment. He has also worked for the […]

By Mark Wilson The email! It burns! The Electronic Communications Privacy Act of 1986 (ECPA) is only one year older than my little sister. But at least she knows what email is. The ECPA still does not. In fact, the 1980s Honeywell advertisement at left (“What the heck is Electronic Mail?“) pretty much sums up the current state of […]

By Sushila Rao The first ever attempt to challenge the constitutionality of an Islamic Syariah(Shariah) ban on cross-dressing has been dismissed by the secular High Court in the Negeri Sembilan province of Malaysia. Article 3 of the Constitution of Malaysia establishes Islam as the “religion of the Federation.”  Under the “dual” legal system ordained by Article 121(1A) of the […]

Its protracted and divisive struggle over the legalization of same-sex marriage notwithstanding, the state of California has taken the lead on another vital issue on the pro-equality agenda—by enacting a legislative ban on so-called “ex-gay” therapy for minors. Effective January 1, 2013, SB 1172 will prohibit children under 18 from undergoing sexual orientation-change efforts (SOCE). […]

By Hudson Kingston Al Capone famously was successfully prosecuted for tax evasion. This fact reminds us of three distinct truisms: 1. Tax evasion is a crime, and Capone went to prison to  eventually die there for his misdeeds; 2. Tax evasion, rather than being something one can harmlessly accuse a presidential candidate of, is likely to be a […]

By Anne King DRI – The Voice of the Defense Bar recently released survey results indicating that many Americans have little confidence in the fairness of the civil justice system. A few interesting highlights: “41% of Americans are not confident that the civil law system is fair and just. Only 9% are very confident.” “Confidence in the courts […]

By Najah Farley By now, everyone is aware of the Newsweek cover story titled, Muslim Rage, which has been the target of both praise and ridicule throughout the blogosphere and national news. After Newsweek published the cover story with the cover photo of Muslim men almost literally frothing at the mouth in anger, there was a social […]

By Mark Wilson Oh, California. Almost twenty years after you passed Proposition 184, the “Three Strikes” law, you want to undo it. California’s Three Strikes law was not the first recidivism statute in this country; those have been around since the common law. It wasn’t even the nation’s first statute to arbitrarily decide that a baseball metaphor should become […]

By idalton After almost three years at the edge of the abyss, recent weeks have given rise to renewed optimism that the global economy is at last returning to stability. Stock markets across the world have shown new dynamism despite economic indicators pointing to sluggish activity in the US (with anemic job creation and manufacturing levels) […]

By Sushila Rao Police in Arizona—the busiest point in the country for illegal entry—can now begin conducting immigration status checks of any person stopped for any reason and suspected of being in the country illegally, after a federal judge lifted an injunction against the controversial provision of Arizona Senate Bill 1070 mandating such checks. The precise text of the […]

By Sushila Rao Even as we continue to grapple with the horrific fallout of the provocative Innocence of Muslims film, the latest blasphemy-related saga in Pakistan appears to be headed for an unusual but highly welcome conclusion—the accused has been released on bail, and her accuser has been arrested for falsely implicating her. The offender this time around […]

By Najah Farley Today marks the 11th anniversary of the 9/11 attacks. As a nation, we have seen many changes since that horrific day. Our nation began fighting the global war against terror, which is ongoing in Afghanistan. We also fought the war against terrorism on our own shores, by loosening the protections on civil liberties to […]

By Hudson Kingston Last June the first woman to win the Nobel Prize in Economics, Elinor Ostrom, died. She had won her award and made her career by expanding on the concept of the commons, as in “the tragedy of the commons”—a fundamental concept to environmental law. Essentially the idea (when it is simplified for lawyers) amounts to stopping […]

By Anne King Next term, in Vance v. Ball State University, the Supreme Court will consider the question of who qualifies as a supervisor to hold an employer liabile for workplace harassment under Title VII. This question matters quite a lot because, under the Faragher/Ellerth doctrine (named for Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth, decided […]

By Yevgeny Shrago Earlier this month, Ford announced that a self-driving mode for its car was five years away from market. Discounting for the moment that many technologies are five years away for twenty years or more, this advance heralds the beginning of a massive change in the way Americans deal with transportation. Although the early models will only offer […]

By HLPR blog editorial staff Mickey Osterreicher is a veteran photojournalist and serves as General Counsel for the National Press Photographers Association (NPPA).  His work has appeared in such publications as the New York Times, Time, Newsweek and USA Today as well as on ABC World News Tonight, Nightline, Good Morning America, NBC Nightly News and ESPN. As […]

By Hudson Kingston Freedom is a concept that many philosophers and law professors could wax eloquent on for a full career without settling on a definition. Perhaps it is true that: “Truth and freedom are difficult concepts to understand. They can’t be grasped by the mind.” These are the words of a prisoner of conscience who […]

By Jonathan Peters This is the eighth in a series of interviews I’m conducting with lawyers and scholars around the country who’ve made a mark on the First Amendment.  Follow me @jonathanwpeters on Twitter. David Goldberger is a professor emeritus of law at The Ohio State University. He began his career as a staff attorney for the Legal Assistance Foundation […]

By Anthony Kammer Tim Wu had an op-ed in the NY Times a few weeks back asking whether computer search processes like search should be recognized as “speech” for purposes of the First Amendment. The problem with giving computer programs rights, as Wu notes, is that many antitrust, privacy, and consumer protection laws against all kinds of […]

By Hudson Kingston Not having read the full opinion in National Federation of Independent Business et al. v. Sebelius, Secretary of Health and Human Services, et al. I still believe that Justice Ginsburg’s concurrence/dissent contains one particular passage that bears noting:

By Jonathan Peters This is the front end of a Slate essay I published. Follow me@jonathanwpeters on Twitter. The Supreme Court isn’t supposed to be like other institutions. It’s supposed to be something more, a place above partisan squabbling, insulated from the unseemly back and forth of politics. The court’s nine justices are the final arbiters of […]

By Tom Watts Part 2 in a series on National Federal of Independent Business v. Sebelius: Roberts and the four liberals upheld the individual mandate as valid under the Taxing Clause. The majority noted, “The exaction the Affordable Care Act imposes on those without health insurance looks like a tax in many respects.” It pointed out […]

By Tom Watts Part 2 in a series on National Federal of Independent Business v. Sebelius: Roberts and the four liberals upheld the individual mandate as valid under the Taxing Clause. The majority noted, “The exaction the Affordable Care Act imposes on those without health insurance looks like a tax in many respects.” It pointed out that […]

By Hudson Kingston In a day and age when green eggs and ham seem like the rule rather than the exception it is rare to eat food that was hunted down and killed. Statistically speaking modern people no longer hunt, and it is not like the grocery stores are full of venison that is hunted by professional […]

By Hudson Kingston Stately, plump [David Cameron] came from the stairhead, bearing a bowl of lather on which a mirror and a razor lay crossed.* And though he may have tried to use this Christological imagery to cut the worldwide public news offerings his government graciously provides, he seems to have failed in delivering on the economic recovery he said his cuts […]

By Jonathan Peters Follow me @jonathanwpeters on Twitter. Middleborough is a quiet town in Massachusetts known for its cranberry bogs and profanity problem. It’s located in historic Plymouth County and … wait, what? A profanity problem? Absolutely, says Mimi Duphily, a former Middleborough selectwoman who runs a small business in the downtown area. She and other business owners are taking a […]

By Hudson Kingston Last week, I wrote on how Myanmar’s new influx of corporate investment was something to watch, especially with a history (both ancient and recent) of brutal corporate involvement in empire building and resource extraction. While the United States is planning to open investments to Myanmar with no treaty in place, it is pertinent […]

By Yevgeny Shrago Anyone who has ever needed to get quickly and cheaply (if not safely) from New York to just about anywhere on the East Coast should shed at least one tear today, as the Federal Motor Carrier Safety Administration shut down 26 bus lines today, most of which operated out of New York and Philadelphia’s Chinatowns […]

By Najah Farley The Syrian regime has reached a new low with the Houla massacre, where it is alleged 108 people died, 49 of them children. Many were killed in summary executions, as opposed to by artillery or mortar fire. Another group of 14 bodies was discovered that had also been executed. Although the Syrian government claims […]

By Sushila Rao By a majority of 5 to 2, the justices of the United Kingdom Supreme Court have votedto dismiss Wikileaks founder Julian Assange’s appeal against extradition from the UK to Sweden, for questioning about allegations of sexual offenses.  The Court held that the term “judicial authority”—which has warrant power under the European framework and under the UK’s […]

By Anne King When police handcuffed Salecia Johnson, a Georgia kindergartner, at her school this week, the incident sparked outrage nationwide. Criticism has focused on both school personnel — who called the police when the six-year old had a tantrum at school — and the local police — who defended their actions by claiming that department policy […]

By Yevgeny Shrago The revelation last week that startup Planetary Resources had secured substantial funding to mine an asteroid was met with equal parts amusement and excitement.  In many ways, this development provides a lot of hope of new innovations for a global economy that increasingly appears to be stagnating.  As the planet begins to seriously consider the potential of […]

By Jonathan Peters Follow me @jonathanwpeters on Twitter. Your tweets are no different from bank records, a New York judge ruled Monday.  Prosecutors had subpoenaed an Occupy protestor’s tweets after he was arrested in the fall during a Brooklyn Bridge protest.  The judge was ruling on the protestor’s motion to quash the subpoena, which sought “user information, including email […]

By Mark Wilson So we’ve got a federal health care law, the federal government arguing for exclusive federal authority in immigration, and statutes that allow for federal prosecution of basically any crime if that crime involved using the mail or transmitting anything over a wire. Whither federalism?

by Billy Corriher Last week, Marcus Robinson was on death row. Now, he has been given a chance at life. His death sentence was overturned because the judge found that black jurors were systematically excluded in his trial. Judge Gregory Weeks issued an order overturning the sentence under North Carolina’s Racial Justice Act, which gives death row inmates the […]

By Tom Watts Elizabeth Warren has, during her Senate campaign, become known as a remarkable communicator.* Last year, one of her speeches went viral for being so clear, so crisp, and so effective an expression of basic progressive values that it had popular appeal immediately. Many on the left have been struggling for a way to articulate the […]

By Najah Farley In the wake of Tarek Mehanna’s conviction on April 12, 2012, I think that many progressive attorneys must have considerable questions about prosecutions for aiding and abetting terrorism and freedom of speech. Mehanna was convicted of terrorism charges and sentenced to 17 ½ years in prison. Based on the prosecution’s evidence, Mehanna went to Yemen […]

By Billy Corriher After Massey Energy Co. spent enormous sums of money to influence elections for the West Virginia Supreme Court, the state created a pilot public financing program to free judicial candidates from outside influence.  Only one candidate (out of eight) in this year’s election has accepted public funding.  Republican Allen Loughry, a longtime clerk at […]

By Yevgeny Shrago The federal highway and transportation reauthorization bill passed by the Senate (which carries the delightfully meaningless title “Moving Ahead for Progress in the 21st Century”) and currently waiting for consideration by the House contains a provision that has a little more to do with due process and taxes than with roads.  According to Section 40304, […]

By Anne King The first decision of the Supreme Court’s 2011 Term, Cavazos v. Smith, which involved the tragic case of Shirley Ree Smith and her family, is back in the news. Ms. Smith was convicted in the 1997 death of her seven week old grandson.  Prosecutors had argued that the baby’s death resulted from “shaken […]

By Anne King The first decision of the Supreme Court’s 2011 Term, Cavazos v. Smith, which involved the tragic case of Shirley Ree Smith and her family, is back in the news. Ms. Smith was convicted in the 1997 death of her seven week old grandson.  Prosecutors had argued that the baby’s death resulted from “shaken baby […]

By Anne King The Twitter effect in politics is now undeniable. In the Arab Spring movements, Twitter and other social media tools made a vital contribution given their ability to disseminate news and connect individuals across class, cultural, and other barriers. (And more infamously, Twitter was responsible for the fall of a congressman.) Recently, post-election […]

By Mark Wilson The federal government raid and shut-down of Oaksterdam University in Oakland, California is the culmination of a bait-and-switch that began in 2009 with the Justice Department’s “Ogden Memo.” The Ogden Memo was ostensibly a clarification of federal policy on raiding medical marijuana dispensaries in states where such dispensaries are legal under state law. The Department, wrote […]

By Billy Corriher Supporters of the Affordable Care Act (ACA), the 2010 health care reform bill known to many as “Obamacare,” are discouraged after last week’s oral arguments at the Supreme Court.  The Justices’ questioning of the Solicitor General and his responses to the justices did not bode well for the Government.  The conservatives Justices seemed skeptical that the […]

By Anne King Back when the Supreme Court granted cert in the Affordable Care Act cases, there was much speculation on how, precisely, the Justices would view the minimum coverage provision of the statute under the Commerce Clause power.  In two earlier posts (here and here), I highlighted several interesting (and less discussed) angles on the Commerce […]

By Sushila Rao The distressing tragedy of Trayvon Martin’s death has also unwittingly drawn attention to the role played by an influential but hitherto low-profile organization in getting Stand Your Ground Laws enacted nation-wide.  American Legislative Exchange Council (ALEC) is a business-funded group which describes itself as  pursuing a nonpartisan agenda, but has been attacked […]

By Najan Farley Trayvon Martin’s shooting along with the beating death of Shaima Alawadi has elevated the serious issues of race and religion in the national discourse and consciousness. Although there are many who still debate the influence of race in the Trayvon Martin shooting, I am firmly of the opinion that race and gender […]

By David Yin The mainstream media and legal blogosphere have covered the oral arguments in the Patient Protection and Affordable Care Act litigation (Dept. of Health and Human Services v. Florida) ad nauseam. The NYTimes certified, ”[t]here is no tea-leaf reading like Supreme Court tea-leaf reading” and excerpted commentary from notable sources: Lyle Denniston from SCOTUSBlog determined that the argument ended “with Kennedy, […]

By Mark Wilson Reading the brief for the states opposing the Affordable Care Act, one is properly acquainted with the definition of a Jeremiad: “a prolonged lamentation or complaint; also, a cautionary or angry harangue.” The states’ brief is lean on legal arguments and long on exhortations that, if the Supreme Court upholds the mandatory coverage provision of […]

By Billy Corriher When the lives of George Zimmerman and Trayvon Martin collided on February 26, neither one could have understood what was happening. Zimmerman was a neighborhood watch volunteer, and he mistakenly thought this skinny teenager, walking down the street with candy, was some sort of threat.  Martin, on the other hand, had no […]

By Yevgeny Shrago The Environmental Protection Agency proposed a rule today that would effectively end the construction of coal-fired power plants in the United States.  The rule, known as a new sources performance standard, will limit the carbon dioxide emissions per megawatt of electricity produced to 1000 pounds of carbon dioxide, nearly half the the coal plant […]

By Peter Dunne What is the optimal means of achieving social change? Are the courts the most appropriate vehicle for implementing progress? Does impact litigation really short-circuit the democratic process? An interesting comparison can be made in the ways which the United States and the United Kingdom both repealed their abortion and sodomy prohibitions. In […]

By Sushila Rao In what Egyptian activists condemn as the latest in a series of acquittals and lenient sentences for policemen accused of the deaths of hundreds of protesters during the 2011 uprising, a court in Egypt has handed down suspended one-year sentences to 11 policemen accused of killing 22 protesters and wounding 44 others on […]

By Najah Farley On Wednesday, the Supreme Court of the United States issued two rulings that give criminal defendants “a constitutional right to a competent lawyer’s advice when deciding to accept a plea bargain.” Justice Kennedy, noting that over 90% of all criminal cases, both state and federal, end in plea bargains, Justice Kennedy stated that […]

By David Yin In last week’s post, I wrote about how “perfect plaintiffs” can be outcome-determinative to the resolution of a case, or the crafting of a rule. Today we return to Dale Carpenter’s book Flagrant Conduct on Lawrence v. Texas,and the importance of a “perfect prosecution.” In some cases where plaintiffs seek to challenge unjust laws, the challenge might […]

By Mark Wilson What has Justice John Paul Stevens been up to in retirement? An interview on The Colbert Report, for one. And finding time to write reviews for The New York Review of Books, for another. Last year, the recently-retired Justice penned a review of Professor William Stuntz’s book, The Collapse of American Criminal Justice. Earlier this month, Justice Stevens returned […]

By Yevgeny Shrago Slate economics blogger Matthew Yglesias recently released a new eBook single, titled The Rent is Too Damn High.  Yglesias’s book blames high rents on inefficient land use, caused largely by various governmental anti-density restrictions.  I’m highly sympathetic to Yglesias’s position.  Ideally, desirable land would be used as densely as the market would bear, lowering rents […]

By Billy Corriher The Second Circuit Court of Appeals has resurrected a deal between the Securities and Exchange Commission (SEC) and Citigroup to settle fraud charges based on the bank’s sale of certain mortgage-backed securities.  District Court Judge Jed Rakoff rejected the settlement deal last fall, ruling that it was contrary to the public interest.  The Second Circuit stayed […]

By Anthony Kammer The Wall Street Journal ran a rather disingenuous and misleading opinion piece on Sunday evening titledThe Corporate Disclosure Assault, arguing that “[u]nions and liberal activists are using proxy rules to attack business political speech.”  The piece—exactly like the undisclosed corporate money it’s pandering to—doesn’t even have an author listed.  And its main […]

By Sushila Rao Sponsors of a Bill seeking to ban the teaching of gay issues to elementary and middle school students have delayed the measure in the Tennessee House of Representatives, ostensibly to allow consideration of a more comprehensive bill that would place restrictions on “family life education” curricula. The amended version of the controversial “Don’t […]

By Jonathan Peters This is the seventh in a series of interviews I’m conducting with lawyers and scholars around the country who’ve made a mark on the First Amendment. Follow me @jonathanwpeters on Twitter. Lee Bollinger is the president of Columbia University. Previously, he was the president of the University of Michigan at Ann Arbor, where he also […]

By Billy Corriher When Texans vote in the upcoming presidential primary, the federal government wants to ensure they won’t be turned away from the polls for lacking the proper identification.  The U.S. Department of Justice (DOJ) on Monday issued a letter rejecting the state’s new voter ID law.  DOJ argued the law would disenfranchise hundreds […]

By David Yin My colleague Peter Dunne previously blogged about University of Minnesota Law professor Dale Carpenter‘s new book, Flagrant Conduct, on the Lawrence v. Texas (2003) decision. (Full disclosure: I attend UMN myself, and in fact took Constitutional Law last semester with Prof. Carpenter). While both Peter and Prof. Mike Dorf agree that the particular facts of a case perhaps ought to matter less to the […]

By Peter Dunne Dale Carpenter, a Professor at the University of Minnesota Law School, has recently published a new book exploring the Supreme Court case of Lawrence v Texas, the 2003 decision, which struck down the United States’ remaining sodomy laws. “Flagrant Conduct,” which was just reviewed by Dahlia Lithwick for the New Yorker Magazine, tells the […]

By Yevgeny Shrago One of the major ethical issues of the twenty-first century already is and will almost certainly continue to be what rights to accord to animals.  The debate has already been joined by well-respected philosophers and critically acclaimed writers and will continue to move from the caricature of a Birkenstock-wearing, dreadlocked punchline into the mainstream. But at the […]

By Anne King In a recent Title VII decision, Coleman v. Donahoe, Judge Diane Wood wrote a very interesting special concurrence calling for the end of the McDonnell Douglas burden shifting framework.  (The Outten & Golden Employment Law Blog recently highlighted the Wood concurrence.) McDonnell Douglas v. Green established the familiar three-step framework for proving employment discrimination under Title VII and analogous civil […]

By Mark Wilson One question that has arisen all too infrequently in discussions of California’s Proposition 8 is, “What effect would such a ruling have on DOMA?” The Defense of Marriage Act (DOMA), chaptered at 1 U.S.C. § 7, defines “marriage” for federal purposes as “a legal union between one man and one woman as […]

By Peter Dunne One of the great differences between the public law regimes of Europe and the United States is the diverging attitudes that judges and legislators have adopted towards “hate speech.” While both the First Amendment of the US Constitution and Article 10 of the European Convention on Human Rights recognize that free expression […]

By Billy Corriher If the comments at oral argument are any indication, the Supreme Court will soon overrule several lower court rulings that held corporations liable for violations of international law under the Alien Tort Statute (ATS), a law passed by the first Congress. The ATS granted federal courts jurisdiction to hear lawsuits by foreign persons for torts that violate international […]

By Sushila Rao Voting mostly along party lines, the Senate today voted to defeat the so-called Conscience Amendment, which embodied the Senate Republicans’ response to the 2010 Patient Protection and Affordable Care Act’s requirement that group health plans must include “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with […]

By Yevgeny Shrago When the National Collegiate Athletic Association’s proposal to permit multi-year athletic scholarshipssurvived an override vote earlier this month, some of the legal implications were obvious. The Department of Justice had already conducted a preliminary inquiry into the antitrust status of the NCAA’s old scholarship rules, which permitted scholarships to be granted for only one year […]

Billy Corriher In a case that does not bode well for Section 5 of the Civil Rights Act, last week the Supreme Court unanimously threw out a federal judge’s redistricting map for the state of Texas. The Court’s per curiam opinion, released on Friday, said the judge failed to show enough deference to the Texas legislature’s map, […]

Yevgeny Shrago While the Internet came together on Wednesday to protest Congressional consideration of the Stop Online Piracy Act in a recognition by citizens that intellectual property infrastructure matters, the Supreme Court struck a quieter, if still devastating blow against an open, vibrant public discourse in its latest IP opinion, Golan v. Holder.  While Golan seems to deal with a […]

Peter Dunne 2012 is shaping up to be a bumper year for Presidential politics. While the GOP candidates fight it out for their party’s nomination on this side of the Atlantic, the race to become France’s next President is just beginning to heat up. As in the United States, the campaign appears to present two […]

Frank Housh Social science continues to tell us that eyewitness testimony is flawed and is responsible for a lot of innocent people getting convicted.  In light of this increasing body of evidence, criminal defense attorneys have argued that absent expert testimony or procedural safeguards, such flawed eyewitness testimony should not be considered by a jury.  […]

Anne King Last week the Supreme Court decided Hosanna-Tabor Evangelical Church and School v. EEOC, recognizing a ministerial exception to the Americans with Disabilities Act’s anti-retaliation provision under the First Amendment. The Court also held that the ministerial exception applied to Cheryl Perich, a teacher at a church-based school who threatened to bring an ADA claim. […]

Mark Wilson Last week, the Supreme Court heard oral arguments in FCC v. Fox, where the Court must decide whether the FCC’s “fleeting” indecency policy, which includes isolated profanity and brief nudity, is unconstitutionally vague. The Second Circuit found that the FCC’s policy, which prohibits “all ‘patently offensive’ references to sex, sexual organs, and excretion,” did […]

Billy Corriher Mitt Romney’s nomination is looking more inevitable, and Newt Gingrich is looking increasingly desperate.  With his campaign coming to an end, Newt has shown himself to be the candidate most willing to stoop to new lows in appealing to racism.  The good news is that – after months of silence from the mainstream […]

David Yin The affordable sequencing of the human genome introduced the tantalizing prospect of personalized medicine, where medical decisions could be made not merely with respect to knowledge about a disease, but tailored to an individual’s unique physiology. Treatments might therefore be chosen that were more effective, and less deleterious. Genomics is only part of the […]

Najah Farley  In her new book, “The Obamas,” Jodi Kantor extensively discusses Michelle Obama’s role as First Lady of the United States. Kantor profiles particular instances where the First Lady informed members of the President’s staff of her displeasure concerning particular policy decisions and issues, as well as being intensely critical of the President. In response, Michelle Obama, […]

Jonathan Peters Reporting on protests is no easy job—just ask the thirty-six reporters arrested while covering the Occupy movement, from New York to Boston to Nashville and beyond. Amid clashes between protesters and the police, the reporters ran afoul of the law. They went places where they weren’t supposed to go, and they did things […]

Anne King Christopher Emdin’s thoughtful recent piece on arrests in public schools inspired me to put together a roundup of recent scholarship on the school-to-prison pipeline.   All of these pieces are sobering reads, but the authors offer concrete ideas for how we can begin to dismantle the pipeline Sarah Jane Forman focuses on school search and seizure in Countering Criminalization: Toward […]

Anthony Kammer Jeffery Clements was at Demos yesterday morning for an event marking the New York launch of his new book, Corporations Are Not People. As a lawyer and cofounder of Free Speech for People, Clements has been one of the leading voices in the campaign for a constitutional amendment to overturn Citizens United. But this book, rather than […]

 Mark Wilson  While we were away on the holiday break, President Obama used his constitutional authority to appoint Richard Cordray as the director of the new Consumer Financial Protection Bureau (CFPB). Senate Republicans — who not only promised not to confirm Cordray, but also promised not to confirm anyone to the position — expressed the […]

Jessica Jackson  Recently a friend of mine sent me this montage about one of the child stars on the hit reality TV show Toddlers and Tiaras.  The show is designed to provide an inside glance at the life of pageant children as they prepare for the pageant and compete.  Many of the segments feature children as young as 8 getting […]

Peter Dunne  It is now twenty years since the Los Angeles Riots – the week of violence which broke out in America’s second largest city following the brutal beating of Rodney King and a subsequent trial where all five of his police attackers were acquitted of assault. The riots in Los Angeles laid bare America’s […]

Yevgeny Shrago For the next three weeks, I’ll be doing a clinical with the New Orleans City Law Department, which involves a deep dive into the city’s licensing regime. I’ll try to share some of the more entertaining things I’ve gleaned from my work and see what sorts of insights it might give for larger […]

Najah Farley Last week, SCOTUS agreed to hear the Department of Justice challenge to SB 1070, Arizona’s comprehensive immigration law. According to commentators, it is likely that the government could be successful in challenging the immigration law, especially with regard to the challenged provisions of SB 1070 which require state law enforcement officials to determine the immigration […]

 Peter Dunne In recent weeks, much has been made of the various attacks  GOP presidential candidates have launched upon the federal judiciary. Term limits, Senate hearings and even impeachment have all been touted as possible methods to reign in our supposedly “out of control” courts system. The movement to curb judicial power currently has no greater champion than […]

Anne King As Peter Dunne pointed out in his post last week, December 2011 has seen several significant milestones for LGBT rights, both in the US and internationally. Count among those events the December 6 opinion by the Eleventh Circuit Court of Appeals in Glenn v. Brumby, which held that discriminating against someone on the basis of […]

Marshall Thompson The trial of Bradley Manning continues after taking a few sensational turns last week. We discussed on this blog a few months ago how Manning’s charges for allegedly leaking classified information to Wikileaks could amount to capital punishment, so the stakes could not be higher. The first surprise was that Manning was transgender. The stress for a U.S. […]

Billy Corriher  The Eleventh Circuit Court of Appeals finally recognized that a supervisor’s use of the word ‘boy’ to refer to black employees is sufficient evidence of racism. It was the third time the court ruled on the case since a reprimand from the Supreme Court  for finding that ‘boy’ was not evidence of discrimination. Last week’s […]

David Yin I recently asked my Facebook network which Supreme Court justice, modern or historical, would they elect to partner with on a Constitutional Law final exam, assuming the justice had taken the class with them that semester. John Marshall, Oliver Wendell Holmes Jr., Robert Jackson, and William Brennan were predictable choices as powerful writers and […]

Billy Corriher  President Obama will sign into law a defense authorization bill that purports to expand his authority to indefinitely detain persons suspected of terrorism.  The President initially threatened to veto the bill over objections to provisions that required military custody of detainees.  The Obama administration argued it needed the flexibility to take both a military and […]

Peter Dunne It has been an extraordinary ten days for Lesbian, Gay, Bisexual and Transgender (LGBT) Rights – both in the United States and abroad. As I previously posted, last week Hillary Clinton made a landmark speech on sexual orientation and gender identity rights at the United Nations (UN) in Geneva. Her address was accompanied by […]

Billy Corriher With the country still mired in a recession caused by the reckless decisions of big banks, Republicans in Congress continue to fight tooth and nail against stronger government oversight of the financial industry.  Last week, Senate Republicans rejected the nomination of former Ohio Attorney General Richard Cordray to head the new Consumer Finance […]

Peter Dunne Much has, and will, be said about Hillary Clinton’s recent remarks on LGBT rights, and the accompanying memorandum which President Obama released on Tuesday morning. However, I think that there are, at this stage, a few points worthy of particular note. First, in addition to the humility with which the Secretary of State addressed America’s own […]

Peter Dunne As the Occupy Movement continues to make national headlines, the struggle to hold America’s ‘1%’ accountable is increasingly being played out through the Federal and State Court Systems. On Wednesday, a South Carolina State Circuit Judge permitted Occupy Columbia protesters to return to the grounds of the State Capitol after attempts by Governor Haley to evict them. This followed […]

Jonathan Peters An AP reporter, an AP photographer, a Daily Newsreporter, a Vanity Fair correspondent, a New York Timesblogger—all arrested or detained while covering Occupy Wall Street (OWS) protests. And that’s just a sample. Josh Stearns, associate program director at Free Press, for two months has tracked journalist arrests at OWS protests, and as of this writing the total is 26.  That’s 26 people […]

Billy Corriher  In the midst of Congress’ continuing debate over Guantanamo detainees, the DC Circuit issued a sharply divided ruling in which it denied one detainee a writ of Habeas Corpus. In Latif v. Obama, the majority overturned the district court’s decision and held that the district court should have shown greater deference to the government’s evidence. The […]

Mark Wilson  Qualified immunity is the little black dress in the civil rights defendant’s litigation toolbox. Any answer to either a 42 U.S.C. § 1983 civil rights complaint or a Bivens action will include this go-to defense. Harsh police reactions in recent weeks at the various Occupy protests have me thinking about qualified immunity. Last month, Oakland police […]

The Minnesota state legislature is now considering H.F. 1666, the “Impartial Justice Act“, which would put to the voters a constitutional amendment to eliminate direct election of state judges. Currently, Minnesota voters elect judges just as they would elect a state senator or governor–judicial candidates raise money, campaign against each other, and appear on the general […]

Jake Laperruque  This week the Supreme Court ended significant speculation by agreeing to address the Constitutionality of the Patient Protection and Affordable Care Act in 2012.  Already a huge amount of commentary has been drawn to the questions of whether the law could – or will – be overturned.  But with a case that is so inherently tied to […]

Peter Dunne As has been well noted over the past week, the defeat of Mississippi’s ‘Personhood Amendment’ was due less to a fear that its passage would define life as beginning at fertilization, and more to the suggestion that the proposed change might criminalize numerous non-abortion related services. For advocates of Family Planning, the campaign to oppose […]

Billy Corriher As the sun rose on Monday, the park that housed Occupy Wall Street was quiet, except for the ruffling of tarps and sleeping bags, some construction noise in the distance. The protesters roused from their slumber. The park was teeming with tents, and the ground covered with sleeping young people. Cooks prepped the […]

Huaou Yan The holiday season had a new addition this year: yesterday, November 16th, was designated American Censorship Day by a group of organizations, including among others, the Electronic Frontier Foundation, Creative Commons, Demand Progress, and Mozilla, to protest the House Bill 3261, otherwise known as the Stop Online Piracy Act (SOPA). A combination of two prior Senate […]

Anne King  A recent decision in an EEOC case against retail chain Sterling Jewelers highlights the issue of pay secrecy in the workplace – in particular the common employer practice of prohibiting employees from discussing wages with one another.  Pay secrecy may stem from a formal employer policy, informal practices or customs, or norms of […]

Sushila Rao In a move laden with mostly symbolic significance—yet potentially fraught with the likelihood of fomenting further ill will in a troubled region—the jury of the Russell Tribunal on Palestine recently published its final statement, concluding that “Israel subjects the Palestinian people to an institutionalized regime of domination amounting to apartheid as defined under […]

Najah Farley  When Arizona passed SB 1070, a number of commentators and blogs compared the immigration laws to vagrancy laws, overly vague laws promulgated after reconstruction to criminalize unemployment. Law enforcement officials had the power to arrest and detain persons who could not show proof of employment. And if those persons were unable to pay […]

 Frank Housh We live a world of unparalleled scientific innovation; it’s a good thing, too, because we are wholly dependent on the scientific process to resolve the issues related to feeding the 7 billion people on the planet without destroying the earth in the process. Despite the crisis confronting us, political discourse in the United […]

Mark Wilson  I’m writing this from Bay Area Rapid Transit (BART), the San Francisco Bay Area subway system. As I write, the Oakland City Center/12th Street station is closed due to a “civil disturbance” arising out of the Occupy Oakland protest. Early Tuesday morning, Oakland police raided Occupy Oakland’s tent city in Frank Ogawa Plaza, […]

Marshall Thompson  Anonymous, one of the foremost hacktivist groups around, decided to clean up the Internet a bit last week by attacking websites and servers that either distribute or support the distribution of child porn. The loosely organized group of hackers has always had a soft spot for vulnerable groups of people and a feeling that they […]

Jeremy Kreisberg The HLS American Constitution Society was honored to be joined by Chief Judge Lippman of the New York Court of Appeals today.  Chief Judge Lippman spoke about New York’s efforts to fund civil legal services for low-income New Yorkers who are at risk of losing the essentials of life, including but not limited […]

Najah Farley On October 22, 2011, the New York Times published “The Paradox of the New Elite.” In the opinion article, Alexander Stille, a professor of international journalism, discussed the paradox of the fact that as formerly oppressed groups, such as women, blacks and gays, have been accepted into the mainstream, economic inequality has increased. Stille posited […]

Jessica Jackson  When Officer Ornelas pulled over Malaika Brooks, seven months pregnant at the time, for speeding in November of 2004, neither of them had any idea that the next hour of their lives would eventually be scrutinized by half the judges of the Ninth Circuit. Ms. Brooks, who denied having sped and believed that Ornelas […]

Peter Dunne On October 18, 2011, the European Court of Justice (the European Union’s court of final instance on Treaty matters) handed down a ruling which prohibits the granting of patents, in all twenty-seven member states, for research involving the destruction of an embryo. The case arose out of an attempt by German scientist Oliver […]

Sushila Rao  Video footage depicting a two-year old girl in China being run over twice by the same mini-van driver, and then once again by a light truck – while as many as 18 passersby ignored her plight – has sparked off the latest round of moral outcry and introspective reflection on modern societies’ lack […]

Najah Farley Qaddafi’s death yesterday marked a turning point in the Arab Spring. The number of authoritarian regimes in the Arab world continues to dwindle and the number of rulers that have been subject to some type of reckoning (whether legal or justified) has increased. His capture (and the apparently gruesome videos) can only serve […]

Peter Dunne Having completed my primary law degree in Ireland and France, I have spent much of the last five years speaking about “democratic legitimacy deficits” – the perception that the European Union is a fundamentally undemocratic institution, controlled by shadowy bureaucrats in Brussels who have little or no interest in the will of the […]

Jake Laperruque As I discussed before, the Supreme Court’s decision in Citizen United v FEC has opened the door to excessive corporate involvement in elections; in the 2010 midterms tens of millions of dollars were taken from corporate general treasuries for election activities, and given the lack of disclosure requirements, these known expenditures are likely only the tip […]

 David Yin Diversity, in its many facets, remains a ongoing issue for the federal judiciary. The National Women’s Law Center recently published a report highlighting the current status of female judges at the federal level. Only 30% of Circuit Court, and District Court, judges are women, and some jurisdictions are (even) less equal than others. The Eighth […]

Jonathan Peters  Finally, my parents can be proud of me. No longer do they have to tell their friends that I practice law or teach or write. They can say I’m a lobbyist, all because of Richard Kaplan, the mayor of Lauderhill, Fla. Kaplan said last week that reporters and columnists are lobbyists. Specifically, he refused to […]

 Billy Corriher A law professor recently compared the Department of Justice’s legal memo justifying the Anwar al-Aulaqi killing to the Bush administration’s notorious torture memos.  Professor Noah Feldman suggested that the OLC again twisted the law to achieve certain ends.  Feldman says that critics of the torture memos believed “there was something wrong with the president acting […]

Huaou Yan It looks like October will be a bad month for those of us hoping for a little more government transparency in the War on Terror. As Billy Corriher of this blog has already noted, in the context of the secret OLC memo justifying the assassination of Anwar al-Aulaqi, that it would be unfair to criticize […]

Frank Housh It was a great mistake to put routine drug offenses into the federal courts. United States Supreme Court Justice Antonin Scalia testifying before the U.S. Senate Judiciary Committee on October 2, 2011. As I was finishing law school in 1993 and making the job interview rounds, I found myself sitting across from a pleasant […]

Catherine Moore  Today’s 1:1,027 prisoner swap between Israel and Hamas represents a number of important shifts in the Middle East dialogue.  Gilad Shalit was taken prisoner in 2006 after terrorists tunneled from Gaza into Israel to murder two IDF soldiers and take 19 year-old Shalit captive.  Although Shalit was literally a few miles from Israel, […]

 Mark Wilson  Last week, the “underwear bomber,” also known not nearly so well by the name Umar Farouk Abdulmutallab, pleaded guilty to eight charges in a Detroit courtroom. Then, without warning, terrorists burst into the courtroom and blew up the entire building. Congress banded together, speaking in one voice, and passed a bill that required terrorism suspects to […]

Anthony Kammer  By applying rational choice theory to voting, one unavoidably concludes that voting to affect electoral outcomes is almost never worth the time and effort. As Steven Levitt of Freakonomics observed, “Nobody in their right mind votes because they think they’re going to affect the outcome of an election. If you look over the last […]

David Yin  Two weeks ago, the Supreme Court of Canada ordered the Canadian Government to allow Insite, a narcotics injection clinic, to remain open. Insite was an experimental clinic created in 2003 by the provincial government of British Columbia and the city of Vancouver, and was granted an exemption from the Controlled Drugs and Substances Act by the then-Liberal government […]

Jake Laperruque The Huffington Post has a history of causing controversy by maneuvering to acquire free labor.  Now, the news website is again raising eyebrows, this time for its use of a new type of employee to keep its blogs updated: Unpaid children. The issue brought forth by this policy is whether blogging constitutes labor (which in […]

Peter Dunne  Over last the last week, there has been considerable discussion about the movement for marriage equality.  An interesting, but rarely addressed question is the role that foreign precedent might play should any of the current live actions make it to the Supreme Court. Lawrence v Texas is obviously one of the most important federal […]

Billy Corriher  There’s been a lot of discussion recently about a perceived assault on voting rights. There have been media reports on a campaign by Republicans and their supporters to enact stricter voting laws. Many states have implemented shorter early voting periods, stricter rules for absentee ballots, and tougher registration requirements. Twenty states have considered new voter ID requirements, and others have […]

Frank Housh Georgia authorities executed Troy Davis by lethal injection Wednesday night. He was declared dead at 11:08 EDT.

Jessica Jackson  Last night the world sat silently holding its breath as it once again waited to hear whether Georgia would be allowed to kill Troy Anthony Davis.  Troy’s case, unlike most death row inmates, received international attention, extensive media coverage, and celebrity awareness.  In fact, the hashtags #TroyDavis and #TooMuchDoubt were tweeted by over fifty thousand people in […]

Jonathan Peters The more students use social media, the more they support free expression, according to a report released last week. Policy researcher Kenneth Dautrich surveyed 12,090 high school students and 900 teachers about free expression, from April to June. His findings, published Friday in a Knight Foundation report, were many and varied—and contextualized, because the survey was […]

Frank Housh  The Georgia Board of Pardons and Paroles announced this morning that it has denied Troy Davis’ request for clemency. He will be executed by lethal injection at 7:00 P.M. tomorrow, Wednesday, September 21, 2011.

Mark Wilson  Death is in the news!  Hot on the heels of Rick Perry’s avowed affection for the death penalty, the U.S. Supreme Court agreed to hear the appeal of Duane Buck, a Texas man so close to execution he had already eaten his last meal.  Buck does not dispute his conviction, but rather disputes his death sentence.  During […]

Frank Housh Troy Davis’s two decade legal odyssey beginning with his 1989 arrest for the murder of Savannah Police Officer Mark Allen MacPhail reaches its climax at today’s final clemency hearing, the last stop before his execution on Wednesday, September 21st in a Georgia execution chamber.  If the execution proceeds, Mr. Davis’s death will be […]

Jake Laperruque This has been a year of tremendous progress for marriage equality.  For the first time in America’s history, a majority of Americans support same-sex marriage.  In June, New York – the third largest state in the country – legalized same-sex marriage.  And in February, the Justice Department announced that it would no longer […]

Anthony Kammer  Following up on an earlier piece about the student loan bubble, I wanted to share two graphics that depict the over $550 billion in student loan debt carried by U.S. households. The first shows 2011 student loan debt relative to 2000 debt. The second reveals how much faster student loan debt has grown relative […]

 Mark Wilson Former Vice President Dick Cheney is on a whirlwind tour this week to promote his new book, In My Time. He chronicles, among other things, the tough decisions he had to make in order to keep America safe, including torturing, authorizing torture, legalizing torture, and justifying torture. Shakespeare said it best: Enhanced interrogation techniques […]

Marshall Thompson J.P. Morgan Chase settled with the U.S. Treasury Department last week to pay $88 million for sanctions violations last week. It’s the largest fee a U.S. bank has ever paid. According to the Wall Street Journal, the U.S. charged that “between December 2005 and March 2011, J.P. Morgan Chase violated several sanctions orders related to […]

Yevgeny Shrago This weekend’s highly hyped hurricane didn’t materialize with the expected vengeance, but it did manage to do significant damage to property across the Mid-Atlantic and Northeast.  Flooded out homeowners find themselves in two very different categories: those with flood insurance and those without.  Since most private insurers won’t provide flood insurance, deeming it too risky, the government […]